Opinion
C060183
7-16-2009
In re T.L., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. S.L., Defendant and Appellant.
Not to be Published
S.L. (appellant), the father of T.L. (the minor), appeals from juvenile court orders establishing visitation between the minor and his parents, and terminating dependency jurisdiction after placing the minor with guardians. (Welf. & Inst. Code, § 366.26, § 395; further section references are to this code.) He contends the court erred in (1) leaving to the guardians discretion the details of the visitation, and (2) terminating dependency jurisdiction. We disagree and shall affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
When the minor was 11 years old, appellant was awarded sole physical custody of the minor because of the biological mothers problems with drugs and alcohol.
The juvenile court later sustained an amended dependency petition alleging that appellant physically abused the minor and failed to protect him from physical abuse by his stepmother. (§ 300, subds. (a) and (b).) The minor was adjudged a dependent child of the court and was placed in the care of a foster family. Appellant and the minors biological mother were allowed supervised visitation with the minor; and appellant, the minors stepmother, and the minors biological mother were ordered to comply with their respective case plans.
Despite attempts by the Sacramento County Department of Health and Human Services (DHHS) to facilitate visitation, appellant made few attempts to visit the minor, and ceased visitation altogether six months prior to the pre-permanency review hearing.
At the pre-permanency hearing, the juvenile court found that appellant failed to participate in services and had only "sporadic visitation" with the minor. The court continued the minors out-of-home placement and ordered the parents to comply with their respective case plans.
Appellant did little to maintain regular visitation with the minor, failing to attend scheduled visits and refusing to visit on weekends or to make efforts to accommodate the minors schedule.
At the permanency hearing, the juvenile court terminated reunification services for both parents and set the matter for a section 366.26 hearing, with guardianship as the recommended plan for the minor.
The report prepared for the hearing stated that the minor had been living with the foster family (the proposed guardians) since his removal from appellants home. The family confirmed that they were willing to facilitate visitation with the minors biological family and that, although appellant had not been having contact with the minor, they hoped he would call the minor. The report concluded that a permanent plan of guardianship was appropriate with the foster family as the appointed guardians.
At the section 366.26 hearing, appellants counsel stated that he was entering a "general objection" "for purposes of the record" but had "no objection to the Court making the decision." Adopting the findings and orders contained in the selection and implementation report, the court appointed the foster family as the minors legal guardians, ordered that appellant and the minors biological mother "be allowed contact with the [minor], as arranged with the guardian and subject to any reasonable conditions, including supervision, as the guardian considers necessary," and terminated the dependency.
DISCUSSION
I
Appellant contends the juvenile court abused its discretion by delegating to the court-appointed guardians the authority to determine the time, place, and manner of visitation, without providing them with reasonable guidelines for doing so.
Admitting that he failed to specifically so object in the juvenile court, appellant contends his claims are not forfeited because the visitation order was "fatally flawed," thus excusing the failure to object, and because the failure to object on the specific grounds asserted on appeal deprived appellant of the effective assistance of counsel.
DHHS responds that the claims of error are forfeited by the lack of objection in the juvenile court and that, in any event, they lack merit and appellant was not prejudiced by the alleged error.
We conclude that the "general objection" by appellants counsel in the juvenile court was insufficient to preserve for appeal the issues appellant now raises. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, ["`appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method"]; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; People v. Partida (2005) 37 Cal.4th 428, 434 [failure to make a timely and specific objection on ground asserted on appeal renders ground not cognizable].)
Nevertheless, we go on to conclude that, even if the issues had been preserved for appellate review, the claim of error fails on the merits.
When the juvenile court selects guardianship as the permanent plan, the court is required to "make an order for visitation with the parents . . . 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).)
"[T]he power to decide whether any visitation occurs belongs to the court alone. [Citations.] When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine. [Citation.]" (In re S.H. (2003) 111 Cal.App.4th 310, 317-318, italics and fn. omitted.)
Here, the juvenile court ordered that contact between appellant and the minor "shall be allowed," i.e., visitation was mandatory, the specific terms of which were to be "arranged with the guardian and subject to any reasonable conditions, including supervision, as the guardian considers necessary."
Appellant claims this order fails to provide sufficient guidelines by which the guardians can determine the appropriate time, place, and manner of visits. We are not persuaded.
"Only when a visitation order delegates . . . 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 (hereafter Moriah T.).)
"[T]he visitation order need not specify the frequency and length of visits." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009.) "Moreover, the order for `reasonable visitation must be read in light of statutory mandates prescribing visitation between parent and child `as frequent as possible, consistent with the well-being of the minor (§ 362.1, subd. (a)) . . . ." (In re Christopher H., supra, at p. 1010.)
In making visitation orders, the juvenile court can properly delegate "the ministerial tasks of overseeing the right as defined by the court. . . . 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 Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
Here, the visitation order does not give the guardians the discretion to determine whether visitation should occur. Rather, the order makes visitation mandatory, allowing for the guardians and appellant to work out the details of appellants visitation, including when and where the visits will take place. Consequently, the order is consistent with this courts decision in Moriah T., supra, 23 Cal.App.4th 1367, in which we held that delegation to the social worker of the ministerial tasks of determining the time, place, and manner of visitation, subject to review by the juvenile court, is not an unauthorized delegation of the courts authority over visitation. (Id. at p. 1374; In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1165-1166 [permitting guardian to determine whether any visits would occur is improper].)
The reasoning in Moriah T. also applies to a guardianship (although the guardians are private parties) because the juvenile court continues to provide oversight of the minors circumstances even when the dependency is terminated. (§§ 366.3, subd. (a), 366.4.)
There was no improper delegation of visitation to the guardians.
II
Appellant claims the juvenile court erred when it terminated dependency jurisdiction after establishing the guardianship and issuing the visitation order. According to appellant, continued jurisdiction was necessary to oversee visitation and to preserve his bond with the minor.
Besides the fact that the "general" objection by appellants counsel in the juvenile court was not sufficient to preserve his claim on appeal (Doers v. Golden Gate Bridge etc. Dist., supra, 23 Cal.3d at pp. 184-185, fn. 1; In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2; People v. Partida, supra, 37 Cal.4th at p. 434), the contention lacks merit.
The record contains evidence that the guardians were fully supportive of, and prepared to facilitate, visitation between appellant and the minor. There is no evidence that the guardians would interfere with visitation or refuse to permit contact, or that the guardian would fail to abide by the courts order for visitation. On the other hand, the evidence shows that it was appellant who failed to maintain regular visitation with the minor; refused to visit on weekends despite the fact that the minor was busy with school, sports, and other extra-curricular activities during the week; and did not attend scheduled visits. The courts order gave appellant the right to visit the minor. Thus, the preservation of any bond between appellant and the minor hinges on appellants willing participation in that process.
If any difficulty pertaining to visitation should arise in the future, appellant has recourse through the juvenile courts jurisdiction over the guardianship itself. (§§ 366.3, subd. (a), 366.4; In re Twighla T. (1992) 4 Cal.App.4th 799, 806.) Therefore, continuing dependency jurisdiction was unnecessary in this case, and the juvenile court did not err in terminating said jurisdiction. (In re Twighla T., supra, at pp. 805-806.)
DISPOSITION
The juvenile courts orders are affirmed.
We concur:
RAYE, J.
HULL, J.