Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County, Super. Ct. No. 96865-2, John F. Vogt, Judge.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
John M. (John) appeals from the juvenile court’s orders made in a Welfare and Institutions Code section 366.26 hearing establishing a plan of long-term foster care with respect to his daughter. John’s sole contention on appeal is that the juvenile court abused its discretion in ordering that visitation with his daughter was at the discretion of his daughter’s therapist. As we shall explain, we disagree and will affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2005, then seven-year-old M. and four-year-old Skylar were removed from their mother’s custody incident to her arrest for possession and sales of controlled substances. The Fresno County Department of Children and Family Services (Department) filed a dependency petition on the children’s behalf alleging their mother’s drug use placed them at risk of harm. (§ 300, subd. (b).) The petition identified John as Skylar’s presumed father and M.’s de facto father, and another man, Vincent S., as M.’s alleged father. At the time the petition was filed, John was an inmate in state prison serving a nine-year sentence for possession/transportation and sales of a controlled substance.
According to the detention report, M. and Skylar previously had been the subject of dependency proceedings after Skylar tested positive for methamphetamine at birth. Both mother and John received reunification services. John’s services eventually were terminated, but mother complied with services and was reunited with the girls in October 2002.
On June 1, 2005, the court found that due to changed circumstances, primarily his incarceration in 2001, John was no longer entitled to de facto parent status with respect to M. John, who according to his attorney had last seen M. in 2002 but had regular telephone and written contact with the girls, requested at least one visit with them at the jail so the social worker could assess the visit. The Department argued the appropriateness of visitation could be assessed first by speaking with the girls and the current care providers. Since the next hearing was two days away, the court stated it would not order visitation until the social worker spoke with the girls and the care provider.
At the June 3, 2005 jurisdictional hearing, the court found the petition’s allegations, which the parties had amended at the hearing, true, after mother submitted “to the jurisdictional determination of the court.” With respect to visitation, John’s counsel agreed with the Department’s proposed plan of giving the Department discretion for visitation with Skylar. The court ordered a supervised visit with Skylar to take place at the jail that afternoon and gave the Department discretion for visitation with Skylar’s counsel’s consent. The court ordered the Department to assess the appropriateness of visits with M.
The social worker’s report for the dispositional hearing, dated July 7, 2005, recommended declaring the girls dependents, offering reunification services to mother and continuing the matter for John. The social worker noted John’s expected release date was in July 2006. The report also described John’s June 3 visit with Skylar at the jail. He was observed to interact with Skylar in an age-appropriate manner and to display appropriate affection. Skylar appeared to recognize him and understand who he was, but “she later told [John], ‘I miss my daddy and John M[.] too.’” John explained he was John M. and her daddy. “Skylar interacted well with [John], and while she was observed to be restless, she continued to visit with [John]. She told him that she wanted to send him pictures of her, and her sister and mother. Skylar told [John] that she loved him at the end of the visit, and blew him kisses before leaving the visitation area.”
On July 7, 2005, the date originally scheduled for the dispositional hearing, the court denied M.’s father reunification services and continued disposition as to John. With respect to visitation with John, the social worker informed the court she spoke with both girls about him, and M. saw him as being her father. The court denied visits between John and M. The social worker who observed the visit between John and Skylar reported that Skylar was confused and did not recognize him, although she was not uncomfortable visiting him. The court concluded it would not be healthy for Skylar to continue visits with John, but ordered he could send the girls letters, which could be given to them at their therapist’s discretion.
An addendum report prepared for the continued dispositional hearing recommended not offering John reunification services under section 361.5, subdivision (e)(1), due to his incarceration. The report stated that John’s release date was March 2010 and that his probation officer believed it unlikely he would be released early due to good behavior. It was further reported that John had been incarcerated since Skylar was nine months old and she had no real bond with him. The Department recommended quarterly unforced supervised visits between Skylar and John while he was incarcerated.
At the November 3, 2005, continued dispositional hearing, John’s attorney presented a report from the prison which stated his release date was July 2006, not 2010, and there were no programs available to him in prison. The court denied his request for visitation with Skylar, but ordered her therapist to assess the appropriateness of visitation.
The dispositional hearing was conducted as a contested hearing on December 7, 2005. John objected to the Department’s recommendation that he not receive reunification services, as his earliest possible release date was July 26, 2006, and he had remained in contact with Skylar despite his incarceration, and asked that visitation be restored. The court noted the previous order for the therapist’s assessment of visitation between John and Skylar, and asked whether that had occurred. The Department reported that the therapist had formed an opinion that visitation would not be beneficial while John was incarcerated, but she had not put it in writing. The court noted that currently visitation had been suspended and in order to change that, John would need to submit a section 388 petition and show changed circumstances. The court agreed the visitation issue could be trailed so that John’s attorney could speak with the therapist by telephone. When the hearing resumed, John’s attorney reported she had spoken with the therapist and based on the limited information the therapist had available, the therapist did not believe visits with John were beneficial. John’s attorney stated she was not going to contest that opinion at that time. The court left the visitation order as it was, with visits suspended, ordered that additional information be provided the therapist so she could assess the appropriateness of visits, and stated it would consider any future section 388 petition on visitation. The court adjudged the girls dependents, removed them from mother’s and John’s custody, denied reunification services to mother pursuant to section 361.5, subdivision (b)(13) and to John pursuant to section 361.5, subdivision (e)(1), and set the matter for a permanency planning hearing.
In the Department’s report prepared for the July 19 permanency planning hearing, the Department recommended a permanent plan of long-term foster care because the social worker did not believe the girls were generally adoptable at that time, as they continued to struggle with ongoing behavioral problems. The social worker reported she had received “a number of letters” from John to the girls and had spoken to the therapist, who continued to recommend visitation with John remain suspended and if the letters are appropriate, they could be given to the girls.
At the Department’s request, the permanency planning hearing was continued so the Department could attempt to locate M.’s alleged father. On August 31, 2006, mother submitted a section 388 petition seeking reunification services and increased visitation. The court ultimately set a contested hearing for November 2, 2006 on both mother’s section 388 petition and a section 388 petition filed by M.’s alleged father, by which he sought custody of the girls as a non-offending, non-custodial parent. The hearing on the two petitions was ordered combined with the permanency planning hearing.
At the combined hearing held in November 2006, the girls’ therapist, Kerri Freeman, testified the girls suffer from severe attachment related disorders, including reactive attachment disorder, and are on medication for ADHD. The girls were moved to their current foster home placement three to four months before the hearing. In their prior placement, they engaged in behaviors that included harming themselves, each other, and animals, as well as being destructive, defiant and withdrawn. In their current placement, the girls’ behavior was improving to the point where they were no longer self-harming, and were not acting out or fighting as badly, and they were forming healthy friendships.
On cross-examination by John’s attorney, Freeman testified that she recalled assessing the appropriateness of visitation between John and Skylar by phone, and that she felt it was inappropriate at the time because the children would have to visit at the jail and there was no chance to form a real bond. Freeman had learned just an hour before that John was no longer in custody, so she had not had an opportunity to reassess her opinion and could not offer an opinion without further information. On later questioning by the Department’s attorney, however, Freeman testified she did not believe visitation would be in Skylar’s best interest since she did not talk about John, making it difficult to introduce him to her without knowing the plan for her care. On further cross-examination by John’s attorney, Freeman admitted she did not have any information on John’s present circumstances to render an opinion as to the appropriateness of visits. Her opinion, however, would be based on how beneficial it would be to add John’s relationship to Skylar’s life at that time, since any new relationship could affect her reactive attachment disorder.
Mother testified that while Skylar was living with her, she could not afford to take Skylar to visit John in prison. John did send “boxes and boxes” of letters and made phone calls to the girls. Mother testified Skylar knew John “through the visits,” but M. knew him more because she’s older and remembers him.
After the court received all the evidence, John submitted on the recommendation for long-term foster care as the permanent plan. Noting that the Department was requesting his visits remain suspended, John made an oral request for visitation. His attorney argued that one of the significant factors in denying visitation in the past was his incarceration, but he was no longer in custody, within a few days of his release he was assessed for an outpatient drug treatment program, and he completed a parenting class while in custody. His attorney requested he receive a minimum of reasonable supervised visits.
The court took the matter under submission. At a subsequent hearing on November 21, 2006, the court issued its decision. The court denied mother’s section 388 petition, as well as M.’s alleged father’s petition, although it found him to be M.’s presumed father. The court adopted long-term foster care as the permanent plan with the permanency goal of a less restrictive foster placement.
With respect to John, the court noted that he did not have anything officially before the court that day, but granted his request to address the court. John requested reasonable visitation with “my daughters to meet with Kerri Freeman.” He asked that Freeman assess him and make a recommendation for visitation rights, and expressed his concern that he would be denied visitation in the future because the girls would not know him. The court asked what the current orders for visitation were. The Department’s attorney responded, “I think it’s the same as the other parents, your Honor. It’s as therapeutically advised.” The court stated: “As therapeutically advised, okay. Well, [John], I don’t think I need to make any changes in that order. I think it’s probably up to you, and your counsel can advise you, but I think it’s up to you to make contact with the social worker and Ms. Freeman as is appropriate and try to reestablish your contact.” The court further explained: “And I just want to clarify for your purposes that the orders I make, I guess, would apply as therapeutically advised and departmentally approved, but specifically it only applies to … Skylar []. And you and your attorney need to address what further relief you seek down the road, if any, but I’m just -- I’m not going to change the orders. You can have visitations as therapeutically advised. [¶] … Again, I’m putting the burden on you. You need to establish credibility with the court as to your efforts to seek further modification of court orders down the road.” The minute order states that visitation between the girls and John “shall be reasonable [as arranged by DSS] as therapeutically advised.”
DISCUSSION
John contends the visitation order entered at the November 21, 2006, hearing that ordered reasonable visitation “as therapeutically advised” was an unlawful delegation of the court’s exclusive authority and responsibility to determine parent-child visitation because it gives a private therapist discretion over whether visitation will occur, citing In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.) and In re Donnovan J. (1997) 58 Cal.App.4th 1474 (Donnovan J.). We disagree.
As a threshold matter, we address the Department’s contention that the juvenile court’s order left visitation exactly as it had been before the permanency planning hearing, namely that John had no right to visitation. In making this contention, the Department relies on the court’s statement, made when announcing its findings on mother’s section 388 petition, that “the visitation orders, as I understand it, are as therapeutically advised and shall remain in full force and effect.” From this, the Department asserts that the juvenile court intended to leave intact prior court orders denying John visits with Skylar.
We disagree with the Department for the simple reason that the court’s statement was made in the context of addressing mother’s issues, not John’s. After making this statement, the court allowed John to address the court, and when he requested visitation, the court asked the Department’s attorney what John’s current visitation order was. The attorney responded that it was as therapeutically advised. The court then specifically stated John could have visits with Skylar as therapeutically advised. This order is reflected in the court’s minute order. The court’s order, therefore, reflects an intent to grant John visitation. If the Department did not agree with this order, its remedy was to ask the juvenile court for clarification or reconsideration, or to itself appeal and challenge the order. The Department, however, failed to do any of these things. Accordingly, we interpret the court’s order as it reads, i.e., that John is to receive reasonable visitation as arranged by the Department and as therapeutically advised.
Turning to the merits of John’s argument, the trial court did not abuse its discretion by ordering that visitation should be “as therapeutically advised.” “The superior court, sitting in dependency cases such as this, has the power and responsibility to regulate visitation between dependent children and their parents. [Citations.] To satisfy this responsibility, a court must ‘define the rights of the parties to visitation.’ [Citation.] The court may delegate ‘ministerial tasks of overseeing the right [to visitation] as defined by the court’ to a child protective services agency. [Citation.] Within guidelines established by the court, the child protective services agency may exercise flexibility in managing the visitation.” (Donnovan J., supra, 58 Cal.App.4th at p. 1476.)
The evil that juvenile courts must avoid when making visitation orders is the improper delegation, to an entity that is neither the court itself nor an arm of the court, of the power to determine whether or not visitation will take place. Thus, it is error to make an order leaving the granting of any visitation at all to a private therapist. (Donnovan J., supra, 58 Cal.App.4th at p. 1477 [visitation order that simply stated “Father has ‘no visitation rights without permission of minors’ therapists’” was reversed as improper because it neither required the therapists to manage ordered visitation, nor did it set any criteria (such as satisfactory progress) to inform the therapists when visitation was appropriate, and gave them “unlimited discretion to decide whether visitation is appropriate”].) Similarly, it is error to allow a child to control whether visitation occurs. (See Hunter S., supra, 142 Cal.App.4th at p. 1505 [court improperly delegated to child unlimited discretion to control whether visitation occurred when court issued order granting monitored visitation “as can be arranged” and therapists gave child virtually complete discretion to veto visitation with his mother].)
On the other hand, granting the Department such power may be acceptable, because of its role as an arm of the juvenile court. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374-1376 (Moriah T.) [juvenile court delegated to county social worker the responsibility to manage details of visitation such as the time, place, and manner thereof, but did not delegate absolute discretion to determine whether any visitation shall occur; order affirmed; appellate court stressed that limited delegation was to a public entity statutorily bound to act as a cooperative arm of the juvenile court]; accord, In re Jennifer G. (1990) 221 Cal.App.3d 752, 756-757 (Jennifer G.).)
The bottom line is that if avisitation order sets parameters within which to organize visitation, then someone more directly involved, on a current level, with supervising the parents’ and children’s progress with dependency-related issues may make some decisions related to when (not if) visitation should occur. Thus, for example, a therapist may be allowed to determine when, but not if, court-ordered visitation should begin. (In re Chantal S. (1996) 13 Cal.4th 196, 213-214 (Chantal S.) [order vesting some discretion, in a therapist of parent’s choice, to determine when parent had made “satisfactory progress” so that the ordered visitation could begin was proper].)
Here, the order in question provides that visitation with John “shall be reasonable [as arranged by DSS] as therapeutically advised.” By this language, the court ordered John receive (1) reasonable visitation, (2) to be arranged by the Department, and (3) as therapeutically advised. The order does not state that John will not receive visitation without the therapist’s permission, as did the order in Donnovan J., neither does it state that he is entitled to visitation “as can be arranged[,]” as did the order in Hunter S. Instead, the order grants John reasonable visitation to be arranged by the Department, which is a permissible delegation of authority to the Department. We have repeatedly held that “the visitation order need not specify the frequency and length of visits.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009, citing In re Albert B. (1989) 215 Cal.App.3d 361, 384-385.) “Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine.” (In re Christopher H., supra, 50 Cal.App.4th at p. 1009; see also Moriah T., supra, 23 Cal.App.4th at pp. 1375-1377 [visitation order granting regular visits at the discretion of child protective services as to time, place, and manner, provided adequate guidelines for CPS to administer the details of the visitation order].)
For this reason, John’s reliance on In re M.R. (2005) 132 Cal.App.4th 269, is misplaced. In that case, the court held the juvenile court abused its discretion when it ordered visitation between the child and parents to “‘be supervised and arranged by the legal guardians at their discretion’” because it delegated to the legal guardians authority to decide whether visitation would occur and left every aspect of visitation, except supervision, to the legal guardians’ discretion. (Id. at pp. 272, 274.) In contrast here, the juvenile court’s order granted reasonable visitation and did not give the therapist discretion over whether visitation would occur.
By adding the term “as therapeutically advised[,]” the court was merely stating that the therapist would have input into the time, place and manner of visitation, and did not leave it to the therapist to determine if visitation should begin. John does not challenge the need for therapeutic input on appeal. Since the order does not specify that visitation will not begin until the therapist permits it, the order did not improperly delegate judicial authority to the therapist and was proper under Chantal S., supra, 13 Cal.4th at pp. 213-214. Should the therapist refuse to comply with the court’s order, John has the right to petition to modify or enforce the visitation order. (See Jennifer G., supra, 221 Cal.App.3d at p. 757; Chantal S., supra, 13 Cal.4th at pp. 213-214.)
DISPOSITION
The court’s order regarding visitation for John is affirmed.