Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County No. DP007600, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
This is the second appeal Elizabeth M. (Mother) has filed since her daughter Teresa was removed from her care during a trial visit in October 2009. In her first appeal, we rejected Mother’s claims she was entitled to greater visitation privileges as well as an evidentiary hearing on the issue of Teresa’s placement. (In re Teresa M. (Oct. 29, 2010, G043438) [nonpub. opn.].) But in this appeal, we agree with Mother the juvenile court improperly delegated its authority over the issue of visitation. The court was not required, as Mother contends, to hold an evidentiary hearing on that or any other issue. Thus, while we reverse the court’s visitation order and remand for further proceedings, no rehearing is required. However, the court must exercise its authority to fashion a more precise visitation order. Other than that, there is no basis for disturbing the court’s rulings.
The reader is referred to this decision for a thorough overview of the facts leading up to this appeal.
FACTS
When we last left off in this case, Teresa had just been placed with her father Joaquin T. (Father) and his family in Winnemucca, Nevada for a six-month trial visit. At that time, March 2010, Teresa was eight years old and very excited about the prospect of living with her father. The juvenile court had previously identified foster care as her long-term placement plan, but with the emergence of her father into the case, she yearned to be in his care.
At the beginning of the trial visit, Father called Mother about every other day so she could talk with Teresa. However, Teresa soon became reluctant to talk to her mother. She told Father that Mother had told her something that was very unsettling to her, namely that Mother was going to “get her back” once this case was closed. This made Teresa very sad; she told Father she did not want to go back to her mother and wanted to stay with him instead.
The social worker called Mother and confronted her about her statement to Teresa. Mother denied telling Teresa that she would be getting her back once the case was closed, but she did admit telling this to Father. She also told the social worker she was going to get Teresa back, and there was nothing the social worker could do about it. During this conversation, Mother raised her voice and was very disrespectful to the social worker. She ended the call by telling the social worker to “go to hell” and hanging up on her.
Nevertheless, the social worker called Father and told him to have Teresa call her mother. Later that day, Mother called the social worker and said Teresa had just left her a voice message. She said she missed the call because she was in a doctor’s meeting, and she wanted Teresa to call her back. However, the social worker told her Teresa would call her at her regularly scheduled times. This made Mother very upset. As before, she got angry and rude and hung up on the social worker. She then called the social worker four more times, screaming and hanging up on each occasion.
On May 10, 2010, the social worker spoke with Teresa’s case worker in Nevada. She reported that Teresa seemed very happy and comfortable living with her father. The case worker had no concerns for the family or about Teresa being in her father’s care.
The case was scheduled for review on July 20, 2010. But on May 14, the social worker prepared a report setting forth the above information. She recommended the July 20 hearing be vacated and Teresa be placed in Father’s custody under a family maintenance plan. Regarding visitation, she recommended Mother be allowed to visit Teresa whenever she was in Nevada or whenever Father and Teresa were in California, so long as Mother arranged the visits ahead of time with Father. The social worker also recommended Teresa be allowed to refuse any visits “if she feels the want or need to.”
On May 17, 2010, the juvenile court held a hearing to consider these recommendations. Mother did not attend the hearing, but her attorney opposed the social worker’s recommendations regarding placement and visitation. Mother’s counsel argued those recommendations changed the posture of the case, and therefore, as a matter of due process, Mother was entitled to an evidentiary hearing on them. However, the court disagreed. Having heard argument from all the attorneys on the case, it determined there was a sufficient basis to modify the case plan as recommended by the social worker. Therefore, the court placed Teresa in Father’s custody under a family maintenance plan and vacated the July 20 hearing date. The court also adopted the social worker’s recommendations on the issue of visitation as set forth above.
DISCUSSION
Mother contends the court violated her due process rights by denying her request for a contested evidentiary hearing. She also argues that failure resulted in the court adopting a visitation order that constituted an improper delegation of the court’s power. We do not believe Mother was entitled to an evidentiary hearing on the issue of visitation, but we do agree with her improper delegation argument.
As an initial matter, respondent contends Mother waived her claims by failing to raise them below. However, the record shows Mother’s attorney specifically objected to the proposed case plan and the recommendations of the social worker. In fact, she argued, “the visitation schedule as it’s set up in the case plan actually inhibits Mother from visiting instead of encouraging visits.” Counsel also specifically requested an evidentiary hearing on Mother’s behalf. Therefore, Mother’s claims are cognizable on appeal.
However, in requesting an evidentiary hearing, Mother’s attorney acknowledged Mother was not presently available to testify. All counsel said in regard to an offer of proof on the subject is that she wanted the opportunity to question the social worker in court. Presumably, counsel wanted to ask the social worker about her recommendations on the issues of placement and visitation, but counsel never spelled that out to the court or explained why a contested hearing was necessary. On appeal, Mother’s argument is similarly lacking in detail. She contends the court failed to consider her point of view on these issues and made its ruling “without hearing the entire story.” But, we do not believe the court erred in failing to conduct an evidentiary hearing, given the procedural posture of the case.
As we explained in Mother’s first appeal, “‘Different levels of due process protection apply at different stages of dependency proceedings. [Citations.]’ [Citation.] In the initial phases of a dependency proceeding, family preservation is the primary focus and ‘“the parent’s interest in reunification is given precedence over the child’s need for stability and permanency.” [Citation.]’ [Citation.] ‘However, “[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” [Citation.]’ [Citation.] Thus, cases holding that a parent has an unfettered due process right to confront and cross-examine adverse witnesses at review hearings held before the permanency planning stage do not compel the identical conclusion with respect to hearings held after reunification services are terminated. [Citations.]” (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1180-1181.)
In this case, it has been two years since Mother’s reunification services were terminated and a long-term placement plan was established for Teresa. Over that period, Mother squandered an opportunity to reunify with Teresa and has been erratic and ill-behaved in her dealings with the social worker, while Father has taken Teresa into his home and provided her with the sort of care and stability that is needed to ensure her continued development. Granted, Mother has an important interest in maintaining ties and contact with Teresa, but she has failed to prove her due process rights were violated in this case. Because she has not shown an evidentiary hearing was needed to protect her interests, the trial court’s failure to hold such a hearing is not cause for reversal.
Nevertheless, it does appear the court’s visitation order amounted to an improper delegation of its authority. In making its visitation order, the court adopted the social worker’s recommendation as set forth in the proposed case plan. That plan provides, “The mother will visit with the child when the mother is in Nevada and has arranged it prior to being in Nevada with the child’s father. The father will also arrange for visits to occur with the mother only if the child and father are in California and are able to arrange a visit. [¶] The child is able to refuse any such visits if she feels the want or need to.”
Respondent argues this is a reasonable arrangement, given that Father lives so far away. However, “The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties. [Citation.]... [¶] A visitation order may delegate to a third party the responsibility for managing the details of visits, including their time, place and manner. [Citation.] [But] ‘the ultimate supervision and control over this discretion must remain with the court....’ [Citation.] Several appellate courts have overturned visitation orders that delegate discretion to determine whether visitation will occur, as opposed to simply the management of the details. [Citations.]” (In re T.H. (2010) 190 Cal.App.4th 1119, 1123.)
In re T.H. involved an order that allowed a noncustodial father to visit his children, “but only upon the ‘agreement of the parents.’” (In re T.H., supra, 190 Cal.App.4th at p. 1123.) Because the order did not require the mother to agree to a minimum number of visits, or any at all, T.H. found the juvenile court “abused its discretion by framing its order in a way that gave [her] an effective veto power over [the father’s visitation] right. [Citation.]” (Id. at p. 1124.)
Likewise, here, the court adopted a visitation plan that allows Mother to visit Teresa, but only if she can arrange it with Father. This gives Father the unfettered discretion to control Mother’s visits. If he is unable or unwilling to work out visitation arrangements with Mother, the terms of the plan will not be satisfied, and Mother will not be able to visit Teresa. Respondent argues Mother can always invoke the social worker’s assistance or file a petition for modification if Father does not accede to her reasonable requests for visitation. However, Mother’s “ability to seek a modification or enforcement of the order... does not solve the problem of [the] unauthorized delegation.” (In re T.H., supra, 190 Cal.App.4th at p. 1123.)
Not only does the court’s visitation order effectively give Father veto power over Mother’s visitation rights, it also gives young Teresa that power. By its terms, the order gives Teresa the absolute right to refuse visits for any or no reason at all. This, too, constituted an unlawful delegation of the juvenile court’s authority over the issue of visitation. Although a child’s desires are a relevant consideration in setting visitation, “visitation may not be dictated solely by the child.” (In re Nicolas B. (2001) 88 Cal.App.4th 1126, 1138; accord, In re S.H. (2003) 111 Cal.App.4th 310, 317-320; In re Julie M. (1999) 69 Cal.App.4th 41, 48-51.) Therefore, “[t]he case must be remanded so that the trial court can exercise its discretion in formulating an order that establishes, at the very least, the amount of visitation to which [Mother] is entitled.” (In re T.H., supra, 190 Cal.App.4th at p. 1124.)
DISPOSITION
The visitation order is reversed and the case is remanded for further proceedings consistent with this opinion. In all other respects, the orders of the juvenile court are affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.