Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD217708
CANTIL-SAKAUYE, J.
Appellant, J.C., Sr., father of the minor J.C., appeals from a juvenile court order of legal guardianship. (Welf. & Inst. Code, §§ 366.26, 395.) He contends the court abused its discretion by delegating full discretion to the guardians regarding the conditions of visitation. We shall affirm.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Because appellant challenges only the visitation conditions imposed as part of the guardianship order, we focus on the proceedings directly leading to the order.
The minor, born on March 2, 2000, to appellant and R.C., was detained in 2007 pursuant to a section 300 petition filed by respondent Sacramento County Department of Health and Human Services (the Department) which alleged that R.C.’s psychiatric or emotional problems put the minor at substantial risk of harm and that both parents were then incarcerated. The minor was placed with a paternal aunt.
The Department’s jurisdiction/disposition report concluded that although R.C.’s prospects of reunification were poor, both parents (now out of custody) should receive reunification services and supervised visitation. The juvenile court sustained the section 300 petition and adopted the Department’s findings and orders as to disposition.
Because the aunt with whom the minor had been placed was moving out of state, the Department filed a section 388 petition recommending placement with a different paternal aunt and uncle, C.J. and A.J. After a relative placement hearing, the juvenile court ordered the recommended placement.
At the six-month review hearing, the juvenile court terminated R.C.’s reunification services and set a progress report hearing to determine whether appellant should receive further services.
The Department’s progress report recommended terminating appellant’s reunification services because he had not participated in services, no longer had a permanent residence, had not visited the minor in over six months despite repeated promises, and was about to have a warrant issued against him by his probation officer.
At the progress report hearing, the juvenile court terminated appellant’s reunification services, found the minor adoptable, and ordered continuing supervised visitation for appellant.
The Department’s section 366.26 report recommended that C.J. and A.J., who did not wish to adopt the minor, be named his legal guardians. Though C.J. was not close to appellant and did not approve of his lifestyle, she was willing to supervise his visits with the minor if he initiated them and acted appropriately during them. The minor stated that he liked living with C.J. and A.J. but would prefer to live with appellant and hoped to be returned to him sometime, though he had been told that this was not the long-term plan.
As to visitation, the Department recommended the following order: “The parents... shall be allowed contact with [the minor] as arranged with the guardian and subject to any reasonable conditions, including supervision, as the guardian considers necessary.”
At the section 366.26 hearing, appellant was not present but was represented by counsel. Counsel requested a continuance, stating that appellant was in local custody and had a criminal court matter later that day. The juvenile court denied the request, then adopted the recommended findings and orders, including the visitation order as worded in the Department’s report.
Appellant filed a notice of appeal in propria persona from the order for legal guardianship.
DISCUSSION
Appellant contends the visitation order improperly delegates authority over visitation to the guardians. Respondent replies: (1) this claim is forfeited because appellant did not raise it below; and (2) even if properly before us, it fails on the merits. We agree with respondent’s second point.
Reviewing courts may properly exercise discretion to consider forfeited claims in dependency proceedings raising important legal issues. (In re S.B. (2004) 32 Cal.4th 1287, 1293-1294 [refusing to apply forfeiture rule in case posing issue raised here].) Furthermore, as respondent concedes, appellant’s notice of appeal, filed in propria persona, may be liberally construed to encompass all orders included within the order of legal guardianship. For both reasons, we shall reach the merits of appellant’s argument.
When the juvenile court has placed a minor in a permanent plan of legal guardianship, the court must order visitation for the parents unless the court finds by a preponderance of the evidence that visitation would be detrimental to the minor. (§ 366.26, subd. (c)(4)(C).) However, as we explain, the visitation order need not specify the details under which visitation shall occur, but may delegate those matters to the legal guardians.
This court held long ago: “Only when a visitation order delegates to the probation office or county welfare department the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine.” (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.).) The mere delegation of the “responsibility of managing the ministerial details of... visitation,” including “time, place and manner,” does not improperly abdicate the court’s authority over visitation. (Id. at pp. 1371, 1374.) A court’s visitation order is not an improper delegation of authority merely because it does not specify the frequency and length of visits. (Id. at pp. 1371, 1375-1377 [disagreeing with dictum in In re Jennifer G. (1990) 221 Cal.App.3d 752, 755-758]; accord, In re S.H. (2003) 111 Cal.App.4th 310, 319 (S.H.).)
Citing Moriah T., supra, 23 Cal.App.4th 1367, with apparent approval, our Supreme Court extended Moriah T.’s rationale to the context of orders delegating authority over visitation to private persons. (In re Chantal S. (1996) 13 Cal.4th 196, 213-214 (Chantal S.) [therapists]; see also In re M.R. (2005) 132 Cal.App.4th 269, 274 (M.R.) [legal guardians]; In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1164-1165 (Randalynne G.) [same].)
The visitation order here does not give the guardians absolute discretion to decide whether visitation will occur. It specifies that appellant “shall be allowed contact with the child.” (Italics added.) The guardians are given only the authority to determine “reasonable conditions”--i.e., “the details of visitation, including time, place and manner thereof.” (Moriah T., supra, 23 Cal.App.4th at p. 1374; accord, M.R., supra, 132 Cal.App.4th at p. 274; Randalynne G., supra, 97 Cal.App.4th at p. 1164.) This term of the order impliedly bars the guardians from denying visitation: an absolute refusal to permit visits could not be a “reasonable condition” of visitation. (Cf. In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 [order must ensure that some visitation will occur] (Hunter S.); S.H., supra, 111 Cal.App.4th at p. 313.) If appellant feels aggrieved by any conditions the guardians impose, he may file a section 388 petition to modify the visitation order. (Moriah T., supra, 23 Cal.App.4th at p. 1377.)
Hunter S., quoting S.H., states that visitation must occur “at a minimum level determined by the court itself.” (Hunter S., supra, 142 Cal.App.4th at p. 1505, quoting S.H., supra, 111 Cal.App.4th at p. 313, italics added.) We think the phrase we have italicized is dictum: the juvenile court need not determine any specified level of visitation in order to ensure that visitation is not denied altogether, which was the issue presented in Hunter S. and S.H. (Hunter S., supra, at p. 1500; S.H., supra, at p. 313.) But so far as these decisions may be taken to hold that the juvenile court must specify a minimum number of visits, we respectfully disagree for the reasons stated in Moriah T., supra, 23 Cal.App.4th at pages 1375-1377. (See also post.)
Appellant relies on M.R., supra, 132 Cal.App.4th 269, where the appellate court directed the juvenile court on remand to make a new visitation order specifying the “frequency and duration” of the parent’s visits. (Id. at pp. 271-272, 274.) M.R. is distinguishable because the juvenile court’s order there did not restrict the guardians’ discretion as does the order here. So far as M.R. supports appellant’s position, however, we respectfully decline to follow it.
In M.R., the juvenile court ordered: “‘Visitation between the child and parents shall be supervised and arranged by the legal guardians at their discretion.’” (M.R., supra, 132 Cal.App.4th at p. 272.) The appellate court found that this order improperly delegated to the legal guardians the authority to decide whether visitation would occur. (Id. at p. 274.) The appellate court acknowledged that the juvenile court may properly delegate to the legal guardian the authority to decide “the time, place and manner in which visitation will take place.” (Id. at p. 274.) But then, without further reasoning or citation of authority on point, the appellate court proceeded to direct that on remand the juvenile court must specify the frequency and duration of the mother’s visits. (Ibid.)
Here, the juvenile court’s order specified that the legal guardians’ arrangement of visitation with the parents was “subject to any reasonable conditions.” Unlike the order in M.R., it did not purport to leave all conditions of visitation “at [the legal guardians’] discretion.” Thus, M.R. is distinguishable.
But so far as the M.R. court deemed its “frequency and duration” condition to be required by law, we respectfully disagree for the reasons stated in Moriah T., supra, 23 Cal.App.4th at pages 1375-1377, which the M.R. court did not consider. We also note that that court did not explain how its highly restrictive condition was consistent with the juvenile court’s authority to delegate “time, place and manner” conditions to the legal guardians. For all these reasons, we continue to believe Moriah T. was correct on this point and find M.R.’s contrary conclusion unpersuasive.
In Moriah T., supra, 23 Cal.App.4th at pages 1375-1377, we explained that responsible public agencies need the freedom and flexibility to manage dependency cases in the best interests of the child, free of burdensome micromanagement by the juvenile court. However, the same reasoning applies by extension to private persons whom the juvenile court has deemed trustworthy to take legal responsibility for minors under the court’s care: they, too, need the freedom and flexibility to arrange matters such as visitation in the child’s best interest.
DISPOSITION
The judgment (visitation order) is affirmed.
We concur: BLEASE, Acting P. J., ROBIE, J.