Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK38625, Maguerite Downing, Judge.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
WOODS, Acting P. J.
Appellant Raymond M., the presumed father of minor R.M. appeals the juvenile dependency court’s orders at the Welfare and Institutions Code section 366.3 review hearing modifying appellant’s visitation rights with his son and terminating juvenile dependency court jurisdiction. Appellant contends that the court erred in denying his request for a contested evidentiary hearing on the modification of his visitation, and that the court did not have sufficient legal basis to terminate dependency court jurisdiction. As we shall explain below, we agree. Accordingly, we reverse and remand.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
In 2009, appellant, R.M. and R.M.’s younger sisters, O.B. and Z.B. were the subject of a previous appeal in which this court affirmed the lower court’s order denying appellant’s sixth section 388 petition. (See In re. O.B., case No. B215190.) The factual circumstances of the dependency case are set forth in detail in our prior opinion and are only summarized and referred to here where relevant.
A. The Dependency Petition, Detention, Jurisdictional and Dispositional Proceedings.
In July 2005, R.M. and his siblings O.B. and Z.B. came to the attention of the Department of Children and Family Services (the “Department”) based on a report that appellant and the paternal grandmother had physically abused Z.B.
The minors’ mother has been incarcerated in Oregon throughout these proceedings and is not a party to this appeal.
Appellant is not the biological father of O.B. or Z.B. and has not been found by the court to be a presumed father of either child. O.B. and Z.B.’s mother indicated that the girls had different fathers. Neither O.B. nor Z.B. are the subjects of this current appeal.
The Department detained the children and filed a dependency petition alleging that the children were persons described under section 300, subdivisions (a), (b), (i) and (j). On November 15, 2005, the court ordered the children removed from appellant’s care and adjudged them dependent children of the juvenile court based on appellant’s physical abuse of Z.B. and his failure to protect Z.B. from abuse by her paternal grandmother. The court ordered appellant to complete a case plan consisting of a Department-approved anger management and domestic violence program, parenting education and individual counseling to address case issues and relationship issues. The court ordered monitored visitation for appellant with R.M..
The court denied reunification services for the children’s mother.
B. Six and Twelve Month Review and Initial Section 366.26 Proceedings.
As of the six month review hearing, the Department reported that appellant had only partially complied with the case plan: he had completed 10 of 16 parenting classes and had completed 10 hours of anger management. The Department further indicated that during the prior six months appellant had been inconsistent in visiting the children and had scheduling issues and complaints about the location of the visits. The Department further reported that the children were doing well in their foster care placement at that time. The Department recommended that appellant receive six additional months of reunification services. At the six month review hearing, the court found appellant in partial compliance with the case plan and ordered six additional months of services.
The Department’s report prepared for the twelve-month review hearing indicated that appellant visited the children inconsistently. The Department recommended that appellant’s reunification services be terminated and that the court schedule a section 366.26 hearing. After a the contested twelve-month review hearing, the court ordered reunification services terminated and scheduled the section 366.26 hearing for April 2007. The court allowed visits to continue.
In January 2007, appellant filed a petition for a writ of mandate with this court seeking the return of the children to his custody or the re-instatement of reunification services. In April 2007, this court denied the petition on the merits in an unpublished opinion (case No. B195919). We held that appellant lacked standing to seek relief with respect to O.B. and Z.B because he was at most an alleged father not entitled to services or custody. With respect to R.M., we concluded that because appellant had failed to challenge the adequacy of the services at the twelve month review hearing he forfeited any complaint about them; and that substantial evidence supported the court’s termination of services.
The section 366.26 hearing was continued a number of times in 2007 and 2008 as the Department attempted to locate an adoptive home for the children.
C. Current Appeal.
On March 18, 2009, the court conducted a hearing on appellant’s sixth section 388 petition. The court denied the petition, but also ordered that appellant was to have visits supervised by a DCFS monitor.
On April 2, 2009, the court conducted a contested section 366.26 hearing. At the conclusion of the hearing the court found by clear and convincing evidence that R.M. was not adoptable and that it would be detrimental to return R.M. to the physical custody of his parents. The court found it would be in the minor’s best interest that a guardianship be granted. The court appointed R.M.’s current caretaker, Robin J. as R.M.’s legal guardian and ordered that letters of guardianship be submitted to the court. The court further ruled that continued supervision by the court was necessary and retained jurisdiction. The court stated “the permanent plan of legal guardianship with the goal of terminating jurisdiction is appropriate and is ordered to continue as the permanent plan.” The court ordered the matter continued for a post-permanency hearing pursuant to section 366.3 in October 2009.
As to the issue of visitation, appellant requested that the guardianship papers reflect that appellant would continue to receive visitation. However, during the hearing neither counsel nor the court could recall the frequency of the visitation that then existed, and therefore, the court ordered that the parties discuss the current level of visitation. The court’s written order from the section 366.26 hearing indicated that appellant would receive weekly monitored visitation at the Department’s offices.
The post permanency hearing was continued a number of times in the fall of 2009. During this time appellant’s visits with the child were inconsistent, based on a “security concern” expressed by the Department. The first review hearing was held in February 2010. As of that time, the Department reported that appellant had not visited with R.M. since November 2009. The court scheduled the next review hearing for August 2010.
Although there does not appear to be any order changing the frequency of appellant’s visitation, by April 2010, it appears appellant was having monitored visits with R.M. twice a month at the Department’s offices and that Robin J. was serving as the monitor. According to the Department’s report Robin J. had unilaterally decided to decrease appellant’s visits because she believed R.M. exhibited negative behavior following the visits. Robin J. apparently told the Department that appellant agreed to visiting only once a month. R.M. told the social worker he enjoyed visits with appellant, and liked playing with him and appellant had been consistent with visits. The Department also recommended the court terminate jurisdiction over R.M., as he was stable in legal guardianship with Robin J.
Appellant objected and asked the court to set the section 366.3 hearing for a contest, maintaining as an offer of proof that Robin J. would not adhere to the court’s visitation order. Appellant denied that he ever agreed to reduce visits to once a month and objected to Robin J.’s restriction in his visitation. Appellant opined that if jurisdiction terminated, and absent a court order regarding visitation, Robin J. would cut off contact with him, and thus deny him visitation with R.M. Appellant’s counsel explained further that appellant had been visiting regularly every two weeks until June 2010, when appellant began having trouble contacting Robin J. Appellant believed he was getting along with Robin J. and was acting appropriately with her. Appellant also denied any inappropriate conduct during visits with R.M. and believed if R.M. was indeed acting out following visits, it was because R.M. enjoyed visitation. Appellant asked the court to liberalize his visits to unmonitored visits, or enforce the prior visitation order, which appellant’s counsel apparently believed was for twice monthly visits.
The court denied the request to set the hearing for contest. The court believed based on the Department’s August 27, 2010, report that R.M.’s behavior was out of control following visits and, “based upon the information I have, and I have been given... with nothing to the contrary, I am going to accept the legal guardian’s view of what’s causing the behavior.” The court decreased appellant’s visits with R.M. to once a month and gave Robin J. discretion to liberalize appellant’s visits. The court terminated dependency court jurisdiction over R.M.
Appellant filed this appeal.
DISCUSSION
Before this court, appellant contends the juvenile court erred in modifying the prior visitation order without the filing of a section 388 petition and erred in denying his request for a contested review hearing under section 366.3. He further argues that in view of the circumstances, the court erred in terminating dependency jurisdiction. We turn first to the claim concerning the request for a contested hearing.
A. Denial of Request for a Contested Review Hearing
Under section 366.3, subdivision (a), when “a juvenile court orders a permanent plan of... legal guardianship pursuant to Section... 366.26, the court shall retain jurisdiction over the child until... the guardianship is established. The status of the child shall be reviewed every six months to ensure that... legal guardianship is completed as expeditiously as possible.” (§ 366.3, subd. (a).) In addition, “[w]hen a legal guardianship is established for a child, the court shall make an order for visitation with the parents unless it finds by a preponderance of the evidence the visitation would be detrimental to the physical or emotional well-being of the child. (§ 366.26, subd. (c)(4)(C).)” (In re Kenneth S. (2008) 169 Cal.App.4th 1353, 1358.)
Furthermore, unless the parental rights have been terminated, a parent has the right to participate in post permanency review hearings, including the right to request a contested review hearing to challenge or contest any proposed order. (In re Josiah S. (2002) 102 Cal.App.4th 403, 416-417, [holding that dependency court’s denial of parent’s request for a contested section 366.3 review hearing constituted reversible error]; In re Kelly D. (2000) 82 Cal.App.4th 433, 439-440 [same].)
As respondent concedes here, the juvenile dependency court erred in denying appellant’s request for a contested review hearing to challenge the modification of his visitation. We conclude that appellant was entitled to the requested hearing and that the juvenile court’s failure to comply with appellant’s request resulted in a miscarriage of justice under the circumstances in this case. (Cal. Const., art. VI, § 13.)
As the court of appeal aptly observed in In re Kelly D., “[r]eview hearings are a critical aspect of our state’s dependency system. We recognize the expeditious resolution of these proceedings is an essential goal of that system. But the Legislature has decided that accommodating the wishes of, and, indeed, rights of parents to attempt to reestablish the parents’ relationship with a child is a vital objective as well.” (In re Kelly D., supra, 82 Cal.App.4th at p. 439.) Accordingly the juvenile court’s order modifying appellant’s visitation must be reversed and the matter remanded to the court to conduct a new review hearing, pursuant to section 366.3.
In view of our disposition, we need not resolve appellant’s claim that the court erred in modifying his visitation absent the filing of a section 388 petition. However, if, on remand a modification of visitation or any other proposed change is sought, the court must have before it a petition for modification filed pursuant to section 388. (In re Lance V. (2001) 90 Cal.App.4th at pp. 668, 673 [holding that juvenile court erred in ordering a reduction in parent’s visitation without a petition for modification]; Cal. Rules of Court, rule 5.740(c).) Appellant must be provided with notice a reasonable time in advance of the rescheduled hearing, and at the hearing, appellant has the right to testify and otherwise submit evidence, cross-examine adverse witnesses, and argue his case.
B. Termination of Juvenile Dependency Court Jurisdiction
Concerning the issue of termination of dependency jurisdiction, respondent argues that even if this court determines that this matter must be returned to the lower court, the order terminating dependency jurisdiction under section 366.3 should remain.
Respondent maintains that, notwithstanding the order terminating dependency court jurisdiction, appellant can seek redress for his complaints concerning visitation in the court because the court retains jurisdiction under section 366.4 in connection with the guardianship. While it is certainly true that appellant retains access to the courts because the court retains jurisdiction over the minor as a ward of the guardianship, that circumstance does not resolve the issue before us now, namely whether the juvenile court properly terminated juvenile dependency court jurisdiction at the August 2010 review hearing.
After “establishment of [the] legal guardianship, the court may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship, as authorized by Section 366.4....” The latter statute declares, in part, “[a]ny minor for whom a guardianship has been established resulting from the selection or implementation of a permanency plan pursuant to Section 366.26 is within the jurisdiction of the juvenile court.” (§ 366.4, subd. (a); see also In re Kenneth S., supra, 169 Cal.App.4th 1353, 1358 [“After a guardian is appointed, the juvenile court may continue jurisdiction over the child as a dependent of the court” or “terminate dependency jurisdiction” and “retain[ ] jurisdiction over the child as a ward of the court....”].) Termination of jurisdiction under section 366.3 relieves the court of the obligation to hold on-going review hearings. (In re Kenneth S., supra, 169 Cal.App.4th at p. 1358.)
The choice of whether to terminate dependency jurisdiction under section 366.3 is within the discretion of the juvenile court. In exercising that discretion, however, the court must consider the factual setting of the case and any circumstances which could negatively impact either the guardianship itself, including the visitation orders. (See In re Twighla T. (1992) 4 Cal.App.4th 799, 806 [finding that visitation post termination of dependency court jurisdiction would not be a problem in view of the court’s conclusion that sufficient evidence in the record supported a finding that the guardian had a cooperative attitude toward visitation]; In re K.D. (2004) 124 Cal.App.4th 1013, 1018-1019 [concluding the juvenile court erred in terminating dependency jurisdiction when ordering a permanent plan of guardianship after finding there had been regular visitation and the minor would benefit from continued contact with the parent, and that mother suffered from impediments that would limit her access to the courts should a problem with visitation arise].) Thus, it appears that the discretionary decision of whether the juvenile court should terminate its jurisdiction under section 366.3 depends on whether the evidence shows a need for ongoing and periodic review by the court under section 366.3, and whether termination of jurisdiction would result in a limitation of a parent’s access to the courts.
In this case, in our view, the court erred in terminating dependency court jurisdiction at the August 2010 review hearing. Given appellant’s offer of proof concerning his relationship with the guardian and the decreasing frequency of his visitation, and given that appellant was denied an opportunity to contest the Department’s report at an evidentiary hearing, we conclude that the juvenile court’s order terminating its section 366.3 jurisdiction was premature. The court did not have all of the evidence before it to engage in an informed exercise of its discretion as to whether there was a need for ongoing supervision, including the required review hearings under section 366.3. In addition, in contrast to In re K.D and In re Twighla T. this court does not have a sufficient record to review to ascertain whether the order terminating dependency court jurisdiction was appropriate. Consequently, the order terminating juvenile dependency jurisdiction cannot stand.
DISPOSITION
The judgment is reversed, and the matter is remanded to the juvenile dependency court for proceedings consistent with the principles expressed in this opinion.
We concur: ZELON, J., JACKSON, J.
In addition, should an appropriate basis to modify the visitation order be shown, the court may not delegate the power to determine the right and extent to visitation to non-judicial officials or private parties. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.) 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 (Moriah T.).) But, the court cannot delegate discretion to determine frequency and duration of visitation. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, [rejecting order which delegated authority to legal guardian discretion to decide frequency and duration of parent’s visits with children].)