Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. CK66723, Jan Levine, Juvenile Court Referee.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Aileen Wong, Associate County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Pauline B., mother of 13-year-old Jeremy, appeals from the juvenile court’s disposition orders. She contends that the court made an impermissible visitation order which leaves sole discretion in the hands of Jeremy’s therapist to decide when visitation would occur. We reverse the disposition order and remand the case to the juvenile court for further proceedings.
Jeremy’s siblings are not parties to this appeal. Nor is Jeremy’s father.
FACTUAL AND PROCEDURAL BACKGROUND
Jeremy was 12 years old in April 2007, when the jurisdiction/disposition hearing was held. After declaring Jeremy a dependent of the court under Welfare and Institutions Code section 300, subdivision (a), the court removed him from mother’s custody.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
The juvenile court ordered monitored visitation, which visitation the Department of Children and Family Services (the Department) had discretion to liberalize. Asked how many times a week visits should occur, the court responded, “I’m not going to force Jeremy to visit right now. I want him to get some therapy, and I actually think when he starts to visit, it should be in a therapeutic setting. So I’m going to . . . have the disposition case plan reflect that.” (Italics added.) Mother’s attorney objected, arguing that the order was an impermissible delegation of juvenile court authority to make visitation orders by allowing the decision to lie with the therapist. The court responded that this was a typical disposition order in a case where the child is afraid of the parent and refuses to be in the same room with her. The court stated, “So[,] what minor’s therapist recommends.” The court then observed that mother was entitled to a year of reunification services and where the case was fresh, the issue could be revisited. The court also suggested that mother begin her services before visits commenced. The minute order from that day indicates that the court ordered monitored visits for mother, “to begin in a therapeutic setting, when the therapist recommends.” (Italics added.)
Mother filed her appeal. While the parties were briefing this appeal, the Department requested that we take judicial notice of the juvenile court’s orders of November 8, 2007, seven months after the jurisdiction/disposition hearing, in which the court made a visitation order that mother be allowed weekly visitation in a therapeutic setting and in consultation with the child’s therapist.
The Department’s request for judicial notice filed November 26, 2007, is granted.
CONTENTIONS
Mother contends that the juvenile court: (1) erred in abdicating its responsibility to fashion visitation orders, and (2) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA), title 25 of the United States Code section 1901 et seq.
DISCUSSION
1. Visitation
Mother contends that the juvenile court’s visitation order “effectively gives sole discretion to Jeremy’s therapist to determine whether any visitation will occur at all during the . . . reunification period” and so it constitutes an impermissible delegation of the court’s authority. Mother observes that the court set no criteria for the therapist and did not mandate that visits actually begin at any time. She argues that under the court’s orders, the therapist does not have discretion solely to determine when Jeremy’s visits will begin, but also whether they will take place at all.
We review the juvenile court’s visitation order for abuse of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.)
The Legislature has mandated that visitation between child and parent “shall be as frequent as possible, consistent with the well-being of the child” and that “[n]o visitation order shall jeopardize the safety of the child.” (§ 362.1, subd. (a)(1)(A) & (B).)
The juvenile court bears the responsibility and authority to define the rights of the parties to visitation between dependent children and their parents. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476; In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) “The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child. In balancing these interests, the court in the exercise of its judicial discretion should determine whether there should be any right to visitation . . . .” (In re Jennifer G., supra, at p. 757.) While a child’s opposition to or fear of visiting an abusive parent may be a ”dominant” factor in managing visitation, it may not be the sole factor. (In re Julie M. (1999) 69 Cal.App.4th 41, 51.)
Appellate courts disagree about whether the juvenile court’s obligation in fashioning visitation includes the requirement that it specify the frequency and length of visits. (See, e.g., In re Jennifer G., supra, 221 Cal.App.3d at p. 757 [court should determine right to and “frequency and length of visitation”]; compare In re S.H. (2003) 111 Cal.App.4th 310, 319 [demonstrating disagreement in case law]; In re Donnovan J., supra, 58 Cal.App.4th at p. 1476 [referring to Jennifer G.’s language as dicta]; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 [disagreeing with Jennifer G.]; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376 [disagreeing with Jennifer G.].) We conclude that the statement in In re Jennifer G., supra, at page 757, namely, that the trial court is solely responsible for establishing the frequency and length of visitation, is dictum. Jennifer G. held that the juvenile court improperly left the decision whether parents had any right to visitation to the discretion of the social services agency. (Id. at pp. 757-758.) Its further ruling that the juvenile court also failed to determine “the frequency and length of visitation” (id. at p. 757) was unnecessary to the holding. (See, In re Moriah T., supra, at p. 1375.)
This responsibility “does not mean the juvenile court must specify all the details of visitation.” (In re Moriah T., supra, 23 Cal.App.4th at pp. 1373-1374.) The court may delegate certain tasks to the county child services agency. It may assign to the social worker the responsibility of managing the ministerial job of overseeing the details of visitation, such as time, place and manner. (Id. at p. 1374; In re Jennifer G., supra, 221 Cal.App.3d at p. 757.) The social worker may exercise flexibility in managing visitation, within the parameters set by the court. (In re Donnovan J., supra, 58 Cal.App.4th at p. 1476.) “ ‘Such matters as time, place and manner of visitation do not affect the defined right of a parent to see his or her child and thus do not infringe upon the judicial function.’ ” (In re Moriah T., supra, at p. 1374.) It is only when the juvenile court “delegates to the . . . county welfare department the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine. [Citations.]” (Ibid.)
Generally, the juvenile court may not delegate to private parties the responsibility of controlling visitation. (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1166; superseded on another point by statute as stated in In re S.B. (2004) 32 Cal.4th 1287, 1295-1296; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505.) “Unlike a child protective services agency, a private therapist is not statutorily bound to ‘act as a cooperative arm of the juvenile court.’ [Citation.] A private therapist is not accountable to the court in the same manner as a child protective services agency.” (In re Donnovan J., supra, 58 Cal.App.4th at p. 1476.)
The question of whether the juvenile court permissibly delegated decisions to a therapist was addressed by the Supreme Court in In re Chantal S. (1996) 13 Cal.4th 196. There, the father challenged the visitation order on the ground that it gave his therapist absolute discretion to determine whether visitation should occur. (Id. at p. 213.) The order at issue stated: “ ‘Visitation . . . for father . . . to be facilitated by [Chantal’s] therapist . . . [¶] . . . [¶] . . . Father must attend therapy regularly and make satisfactory progress for a time before any visits as determined by his therapist.’ ” (Id. at p. 202.) The Supreme Court held that the requirements that visitation be “facilitated” by Chantal’s therapist and that the therapist determine when “satisfactory progress” was achieved did not constitute improper delegation of judicial authority. (Id. at p. 213; In re Donnovan J., supra, 58 Cal.App.4th at p. 1477.)
In particular, Chantal S. held that the order that visitation be “ ‘facilitated’ ” did not vest the therapists with “ ‘absolute’ ” discretion to determine whether visitation should occur. It gave the child’s therapist “no discretion whatsoever” but “appear[ed] designed merely to mandate that Chantal’s therapist cooperate with the court’s order that visitation occur once certain conditions are met.” (In re Chantal S., supra, 13 Cal.4th at p. 213.)
Likewise, the part of the order that conferred on the therapist the decision when “satisfactory progress” was achieved was not an unlawful delegation. The Chantal S. court explained that the juvenile court had necessarily found that visitation would not be appropriate until the father had made satisfactory progress. (In re Chantal S., supra, 13 Cal.4th at pp. 213-214.) Thus, the court held, the juvenile court appropriately limited visits to a time when the therapist determined the father had progressed satisfactorily. (Id. at p. 214.)
By contrast, the order at issue in In re Donnovan J., supra, 58 Cal.App.4th 1474, constituted an impermissible delegation. That visitation order provided, “ ‘[f]ather to have no visitation rights [with children] without permission of minors’ therapists.’ ” (Id. at p. 1475.) The appellate court held that the visitation order there unlawfully delegated judicial authority to the therapists because, unlike Chantal S., the order neither set criteria for when visitation would be appropriate -- such as the “satisfactory progress” language in Chantal S. -- nor required that the therapists manage visitation. (Id. at p. 1477.) Moreover, the juvenile court’s order in Donnovan J. gave sole discretion to manage visitation to the therapists who would have unlimited power to decide whether visitation would even be appropriate. (Ibid.) Donnovan J. reasoned that “[a]lthough a court may base its determination of the appropriateness of visitation on input from therapists, it is the court’s duty to make the actual determination.” (Id. at p. 1478.) Accordingly, the visitation order there constituted an improper delegation of judicial power.
Mother likens the visitation order here to that in Donnovan J., while the Department sees the order as most analogous to Chantal S. Here, the juvenile court made an actual determination about visitation. The court ordered monitored visits in a therapeutic setting. Thus, the court did not delegate to the therapist the authority to decide whether visitation would occur at all.
We conclude, however, that the juvenile court improperly delegated to a therapist yet to be designated, the determination when the visits would commence. Although it falls somewhere in between, the visitation order here is more like that in Donnovan J. than in Chantal S. Unlike Chantal S., but similar to Donnovan J., the order here does not establish criteria for the therapist to consider in determining when visits should begin, such as the “satisfactory progress” criterion in the Chantal S. order. Jeremy had yet to begin therapy and it would be possible that his eventual therapist would not recommend visits with mother at all before the reunification period expired. Nor did the visitation order give the therapist guidelines for managing the visitation. “If . . . the court grants visitation, ‘it must also ensure that at least some visitation at a minimum level determined by the court itself, will in fact occur.’ [Citation.]” (In re Hunter S., supra, 142 Cal.App.4th at p. 1505, quoting from In re S.H., supra, 111 Cal.App.4th at p. 313.) In this case, to assure some visitation would occur, the court should have set factors for the therapist to use.
In In re Hunter S., supra, 142 Cal.App.4th 1497, the appellate court held that an order that visitation would occur “as arranged,” and that allowed the child to veto visits was an impermissible abdication of juvenile court responsibility to monitor its visitation order and delegation of decisions to the child and therapist. (Id. at p. 1505.)
“Visitation is a necessary and integral component of any reunification plan. [Citations.] ‘An obvious prerequisite to family reunification is regular visits between the noncustodial parent or parents and the dependent children “as frequent[ly] as possible, consistent with the well-being of the minor.” ’ [Citation.]” (In re S.H., supra, 111 Cal.App.4th at p. 317, fn. omitted.) The juvenile court’s visitation order here was illusory because the court ordered visitation while delegating responsibility to a yet-to-be-designated therapist the power to determine when visitation would occur, without specifying criteria for making that determination. (In re Hunter S., supra, 142 Cal.App.4th at p. 1505.) The court effectively both ordered and potentially precluded visitation for half of the reunification period, eroding mother’s opportunity to reunify. (See, id. at p. 1508.)
Nor do we think that the juvenile court’s order for weekly visitation made in November 2007 ameliorates the harm done by the April 2007 order at issue in this appeal. The court’s order for weekly visitation did not return to mother the seven months she has potentially missed.
2. ICWA compliance
Mother contends that the court failed to ensure compliance with the ICWA. The Department concedes its notices did not satisfy the requirements of the ICWA (25 U.S.C. § 1912(a)) and does not oppose remand for the limited purpose of assuring proper compliance with that Act.
Title 25 United States Code section 1912(a) states: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, that the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.”
The responsibility for compliance with the Act falls squarely and affirmatively on the court and the Department. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409.) When notice is required but not properly given, the dependency court’s orders are voidable. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.) Because we are reversing the disposition order, we will also remand the case with directions to the juvenile court to assure that the required notices are properly given and, based on the results, determine whether Jeremy is an Indian child under the act.
DISPOSITION
The court’s disposition order concerning visitation is reversed and the matter is remanded to the juvenile court with directions to the juvenile court to (1) exercise its discretion to fashion a new visitation order guided by the principles set forth herein; and (2) direct the Department to comply with the notice provisions of the ICWA and, after proper notice under the ICWA, to determine whether Jeremy is an Indian child and the ICWA applies to these proceedings. In all other respects, the juvenile court’s disposition order is affirmed.
We concur: KLEIN, P. J. KITCHING, J.