Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Super.Ct.No. JUV084719
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Ramirez P.J.
Father appeals from a permanency planning judgment, establishing guardianship as the permanent plan and ordering reasonable visitation. (Welf. & Inst. Code, § 366.26, subd. (b)(3).) Father challenges the visitation order on the ground it failed to insure at least some visitation would occur. We affirm.
All further references are to the Welfare and Institutions Code, unless otherwise specified.
BACKGROUND
The quoted information is taken from In re S.W., E045347, our unpublished opinion filed on March 9, 2009: “On September 27, 2007, a Department of Public Social Services (DPSS) social worker responded to a referral at father’s trailer. There, the immediate response social worker found deplorable conditions, including piles of trash and debris scattered throughout the front yard, an open septic tank with raw sewage, piles of trash, newspapers, empty soda cartons, clothes and other articles at the front door. Inside, there was a wall of trash inside the front door, and trash, debris, clothing and other articles strewn about in every room of the structure. The trailer was also infested with mice. In addition, there was no electrical power to the trailer, no gas, no hot water, and the toilet did not flush. The 12-year-old minor, S.W., was taken into temporary custody.
“On October 1, 2007, a dependency petition was filed alleging general neglect [§ 300, subd. (b)] by the parents with respect to the conditions of the residence. The petition included an allegation that the parents had received family maintenance services in 1995, and had been provided family reunification services on more than one occasion between 1998 and 2003, but had not benefitted from services. As a result, one child remained in a permanent placement. At the detention hearing, the court removed S.W. from the custody [of] her parents. [Fn. omitted.] Because father indicated [possible] Indian heritage, the court also determined that [the Indian Child Welfare Act] ICWA may apply.
“The jurisdiction/disposition hearing was conducted on March 3, 2008. Father did not appear, and mother submitted on the social worker’s reports for jurisdiction. The court made a true finding on the allegations S.W. had been neglected, found that ICWA did not apply, approved the case plan, and ordered the parents to participate in reunification services. Father appealed.” (In re S.W. (Mar. 9, 2009, E045347 [nonpub. opn.].) At the disposition hearing, the court also limited father’s visitation by ordering that visits take place in a therapeutic setting because father was confrontational with Child Protective Services staff during visits and the minor did not feel safe around him due to prior abuse.
In that appeal (E045347), we reversed for the limited purpose of insuring compliance with the Indian Child Welfare Act (ICWA) notice requirements on March 9, 2009, affirming all other orders.
At the six-month review hearing (§ 366.21, subd. (e)), the court found that return of the child would be detrimental and continued the dependency after finding that the extent of father’s progress was unsatisfactory. Prior to the 12-month review hearing, the court suspended father’s visits because of the detrimental effect the visits had on the minor. At the contested 12-month-review hearing (§ 366.21, subd. (f)), the court terminated services for father because he had failed to participate in services and had made no progress in eliminating the causes that led to the dependency. The court determined that the minor was not a proper subject for adoption and ordered a planned permanent living arrangement for her as the permanent plan. However, the court did reinstate contact between the minor and father in a therapeutic setting. No appeal was taken from this order.
In May 2009, DPSS submitted a post-permanent plan review report (§ 366.3), where it was noted that the minor declined to participate in conjoint therapy with her father, notwithstanding the prior order. She was willing to visit with him, but felt that the therapeutic setting made father less communicative, so the minor requested to visit with father in a public place. The minor enjoyed maintaining limited email and telephonic contact with father.
Following the issuance of our opinion in the prior appeal, (In re S.W., supra, E045347), the juvenile court directed DPSS to provide proper notice to the Indian tribes. On June 5, 2009, the Chickasaw Nation determined that the minor was an Indian child due to her paternal grandfather’s membership in the tribe. On June 8, 2009, the court conducted the post-permanency review hearing. (§ 366.3.) At that hearing, the court ordered that visits between the minor and father would only be permissible in a therapeutic setting. The parties submitted a stipulation at the hearing in which they agreed with the minor’s placement and the specific goal of guardianship. Additionally, the stipulation provided for the selection of a new therapist for the minor and supervised visits for father in a therapeutic setting.
In the meantime, the minor was placed with relative caregivers who desired to be appointed as her guardians. The minor did well in this placement until the caregivers moved to Yucaipa, at which time her school performance began to decline due to the stress of commuting to Riverside for school. It was therefore agreed that the minor would be moved to another relative’s home. In the December 2009 post-permanent plan review report (§ 366.3), the social worker commented that the minor continued to decline to participate in conjoint therapy with the father. She preferred to write to him by way of email or telephone calls because therapy was not conducive to communication. Visits with father in conjoint therapy had proven to be emotionally detrimental to the minor due to prior abuse by her father which she only recently had begun to discuss. On December 14, 2009, at the post-permanent plan hearing (§ 366.3), the parties stipulated to placement with a relative caretaker and a specific goal of legal guardianship.
In January 2010, the social worker submitted an addendum report outlining the progress of the background check of a cousin who lived in the home of the prospective relative caretaker. Due to the minor’s recent disclosures of abuse, the social worker recommended the authorization of a new therapist, and an order that visitation with father should only begin when the therapist indicated it would be beneficial.
On June 2, 2010, the social worker submitted another post-permanent plan review report (§ 366.3), recommending the establishment of a guardianship for the minor. In the report, the social worker recommended that visits between the father and the minor be suspended because the minor recalled mistreatment by him and she did not want to visit with father. The report also noted that the new relative caretakers were willing to be legal guardians of the minor. The post-permanent plan review hearing took place on June 14, 2010. At the hearing, the court ordered a hearing to select and implement a permanent plan. (§ 366.26.) The court did not suspend visits, but directed that visitation between the minor and her father were to be based on the minor’s consent. Father did not challenge this order by way of writ petition or appeal.
Between June 14, 2010, and September 28, 2010 (the date of the § 366.26 report), the minor had no telephonic contact or visits with father. However, she periodically responded to emails she received from her father. Her school grades had improved and her relative caretakers were still willing to be her legal guardians. The selection and implementation hearing (§ 366.26) was held on October 12, 2010. The parties signed a stipulation agreeing to a permanent plan of legal guardianship, and legal guardianship was ordered as the permanent plan at the hearing. The court authorized reasonable visitation between the minor and her father, by mutual agreement of the minor, the father and the legal guardians. Father timely appealed.
On October 27, 2010, the father made an ex parte request in the trial court to stay the order selecting legal guardianship as the permanent plan, which was denied prior to his filing of the notice of appeal.
DISCUSSION
Father argues on appeal that the juvenile court abused its discretion in making a visitation order that did not specify the duration and frequency of the visits. We disagree.
DPSS argues the issue was forfeited due to father’s failure to object at the hearing. We disagree. At the hearing, when the court reached the issue of visitation, father argued that visitation had not occurred for some time and that he wanted to visit his daughter. Father’s expression of “concern about the visitation”, was sufficient to preserve the issue for review.
In a section 366.26 permanency hearing, if the court appoints a legal guardian for a dependent child, the court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child. (§ 366.26, subd. (c)(4)(C).) In amending section 366.26 to add this subdivision, the Legislature made clear its intent to require juvenile courts to make visitation orders in both long-term foster care placements and legal guardianships. (In re M.R. (2005) 132 Cal.App.4th 269, 274 [Fourth Dist., Div. Two]; see also In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1313.)
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 T.H. (2010) 190 Cal.App.4th 1119, 1123, citing In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) However, the ultimate supervision and control over the discretion to determine whether visitation will occur must remain with the court. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1139.) Thus, a juvenile court may not delegate the issue of whether visitation between a child and his or her parent shall occur to a minor’s legal guardian (In re S.J. (2008) 167 Cal.App.4th 953, 962), or the child’s therapist (In re Nicholas B., at p. 1138, citing In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476), or the child involved, although the child’s desires may be a dominant factor. (In re Nicholas B., at p. 1138, citing In re Julie M. (1999) 69 Cal.App.4th 41, 51.)
However, when the juvenile court orders visitation to take place, the details of frequency and duration may be delegated to the guardians to determine. (In re Moriah T., supra, 23 Cal.App.4th at p. 1376 [reasoning that frequency and duration are aspects of time, place and manner of visitation].) Courts must attempt to strike a balance between visitation orders which are so specific that they are unworkable on the one hand (ibid.), and orders that are so vague as to constitute a delegation of judicial discretion on the other. (See In re T.H., supra, 190 Cal.App.4th at p. 1123 [visitation upon “agreement of the parents” effectively delegated to mother the power to determine whether visitation will occur at all].)
In the present case, the juvenile court made broad visitation order which did not specify the frequency or duration of visits but did insure ongoing telephonic and email contact. In some cases, a lack of necessary detail in a visitation order has required a remand to clarify the terms and conditions applicable to the parent’s visitation. (See In re Kyle E. (2010) 185 Cal.App.4th 1130, 1136.) In such cases, it has been reasoned that the court should determine the frequency and length of visitation. (See In re S.H. (2003) 111 Cal.App.4th 310, 319-320; In re Jennifer G. (1990) 221 Cal.App.3d752, 757.) However, other courts have rejected such a requirement. (See In re James R. (2007) 153 Cal.App.4th 413, 437-441; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009-1010; In re Moriah T., supra, 23 Cal.App.4th at p. 1376 [“... parties in a dependency proceeding should not be locked into a visitation order which specifies a rigid schedule and length of visits. Such an order is not in the best interests of either the child or the parent or guardian because it fails to allow the flexibility necessary to rapidly accommodate the evolving needs of the dependent child and his or her parent or guardian.”].)
The order for “reasonable” visitation was not meaningless and unenforceable because compliance with the order is subject to the court’s supervision and control. (See In re S.C. (2006) 138 Cal.App.4th 396, 416.) The order did not delegate ultimate discretion over whether visitation would occur to either the guardians or the child because it authorized continuing telephonic and email communication between father and child. In other words, the aspect of the order providing for visits “by mutual agreement of the minor, the father and the legal guardians” only pertained to in-person visits; father was assured he would be allowed to maintain telephonic and email communication with the minor. The nature or manner of contact is considered a form—or manner—of visitation, which is delegable. It was therefore not improper to delegate to the agreement of the parties when a certain type of visitation would occur, so long as other types (manner) of contact are assured.
The juvenile court candidly articulated that the problem presented vis-à-vis any visitation order was the minor’s refusal to see her father in person. “I don’t think that I can order a 16-year old into a visitation schedule if she doesn’t want it.” The minor did not want to visit her father because she felt upset when she remembered how he mistreated her. The emotional stress she experienced is an indication that in-person visitation was detrimental to her emotional well-being. (§ 366.26, subd. (c)(4)(C).) Rather than suspend all visits, however, the court ordered continued telephonic and email communication, deferring only the in-person visits until the parties agree they are appropriate.
The juvenile court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
We concur: Richli J., King J.