Opinion
B298273
03-02-2020
In re M.L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff, v. ERIC M., Defendant and Appellant; L.L., Defendant and Respondent.
Donna Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Eric M. Patricia Saucier, under appointment by the Court of Appeal, for Defendant and Respondent L.L.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No.18CCJP05391) APPEAL from orders of the Superior Court of Los Angeles County, Thomas E. Grodin, Juvenile Court Referee. Affirmed in part and reversed in part with directions. Donna Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Eric M. Patricia Saucier, under appointment by the Court of Appeal, for Defendant and Respondent L.L.
Appellant Eric M. (Father) is the presumed father of M.L. (born in July 2018). M.L. is the subject of terminated dependency proceedings in which both Father and M.L.'s mother, L.L. (Mother), were the offending parents. At the conclusion of those proceedings, the juvenile court issued a custody order granting Mother sole custody of M.L. and permitting Father monitored visits with the child "as mutually agreed" to by Father and Mother.
Father's sole contention on appeal is that the juvenile court abused its discretion by refusing to include a minimum amount of visitation in the custody order. We agree and reverse with instructions that the juvenile court revise its order to specify a minimum frequency and/or amount of visits.
PROCEDURAL AND FACTUAL BACKGROUND
Most of Father, Mother, and M.L.'s history with DCFS is not relevant to this appeal. For the purposes of deciding the issue currently before us, it is sufficient to note that, when M.L. was one month old, DCFS filed a Welfare and Institutions Code section 300 petition against both Mother and Father based on their drug abuse and criminal and DCFS history. M.L. was detained and released into the care of Mother. Over the course of the dependency proceedings, Mother complied with her case plan and showed progress in her ability to care for M.L. Father made some progress by participating in an inpatient treatment program, but failed to maintain communication with DCFS or comply with other aspects of the case plan.
At a family maintenance review hearing, on DCFS's recommendation, the court terminated jurisdiction and ordered sole legal and physical custody be awarded to Mother, with Father allowed monitored visits. Father indicated that Father and Mother "g[o]t along," and the court granted Father's request that the monitor for visits be one mutually agreed upon by the parents. The court refused Father's request that the custody order include a minimum number of hours of visitation for Father.
The court ultimately issued a final written custody order awarding Father visits "monitored by [M]other or a mutually agreed upon monitor" with "Father's visitation time to be determined and arranged by the parents as mutually agreed." Father timely appealed.
DISCUSSION
When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make orders regarding custody and visitation. (Welf. & Inst. Code, §§ 362.4, 364, subd. (c); In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358.) Such orders become family court orders that remain in effect until a court terminates or modifies them. (In re Roger S. (1992) 4 Cal.App.4th 25, 30.)
The power to determine the right and extent of visitation by a noncustodial parent in a dependency case, including in the context of "exit orders" terminating juvenile court jurisdiction, "resides with the court and may not be delegated to nonjudicial officials or private parties." (In re T.H. (2010) 190 Cal.App.4th 1119, 1123 (T.H.); In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.) Although the court may "delegate to a third party the responsibility for managing the details of visits, including their time, place and manner," such delegation of ministerial aspects of the visit may not effectively give the party to whom these ministerial decisions are delegated "the power to determine whether visitation will occur at all." (T.H., supra, 190 Cal.App.4th at p. 1123; see In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.) [collecting cases].) The theoretical ability of the noncustodial parent under such circumstances to seek a modification or enforcement of the order in family court "does not solve the problem of this unauthorized delegation." (T.H., supra, 190 Cal.App.4th at p. 1123.)
Such improper delegation occurs where, for example, one parent has custody of the child, and the order provides that visitation will occur at a frequency to be determined by "agreement of the parents." (T.H., supra, 190 Cal.App.4th at p. 1123.) Without further requirements from the court, "the custodial parent . . . could conceivably agree to only one visit a year or less without violating the letter of the court's order." (Ibid.; see In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 (Rebecca S.) [order that provided for monitored visits but left frequency and duration of visits within the legal guardian's discretion "allow[ed] the guardian to decide whether visitation actually will occur" and was thus an abuse of discretion]; see also In re S.H. (2003) 111 Cal.App.4th 310, 319 [order failing to set a minimum number of visits per month and allowing children to refuse "a visit" rendered mother's visitation right "illusory, transforming the children's ability to refuse 'a visit' into the practical ability to forestall any visits at all"].)
Just such a situation is created by the trial court's order regarding visitation with M.L. Because the order grants as many visits as are "mutually agreed" upon by Mother—M.L.'s sole custodial parent—and Father, it effectively empowers Mother to determine whether visits will occur at all. This is an abuse of discretion not only because it improperly delegates the court's duty under the authority discussed above, but also because "the trial court already has determined that visitation with Father is warranted and appropriate"—a determination not challenged on appeal—yet the lack of a minimum visitation requirement thwarts this very goal. (Rebecca S., supra, 181 Cal.App.4th at p. 1314.) Namely, "scheduling the frequency and duration of . . . visits ensures" Father the opportunity to "maintain[ ] [Father's] parental relationship" with M.L., rather than leave this to "the possible whims of [Mother]." (Ibid.)
The cases Mother cites to support an opposite conclusion are inapposite, in part because they involve orders governing visitation during ongoing dependency proceedings. In In re Christopher H. (1996) 50 Cal.App.4th 1001 (Christopher H.), for example, as part of a reunification plan in ongoing dependency proceedings, the juvenile court awarded an incarcerated father supervised "reasonable visits" with his son, who was in DCFS custody. (Id. at pp. 1008-1010.) In concluding the order did not reflect an abuse of discretion, the appellate court first noted that visitation was part of a case plan that, because it was tied to ongoing dependency proceedings, would last for a "relatively brief period. (Id. at p. 1009.) During this brief period of juvenile court jurisdiction, "[r]equiring a disposition order to specify frequency and length of visitation compromises the ability of the county agency to fulfill its statutory mandate to supervise each case in a manner consistent with the child's best interests," given that "the effectiveness of a family plan, including visitation, depends on the resources and flexibility of the agency charged with its implementation and supervision." (Ibid.) The court also found the order "appropriate under the circumstances" given that the child was an infant "with significant health problems who was scheduled to begin a series of surgeries," and that the father was incarcerated, meaning the amount of visitation that may be possible and/or in the child's best interest would vary. (Id. at p. 1010.) Finally, the court stressed that DCFS—the entity to which decisions regarding the frequency of visitation was delegated—"is subject to the juvenile court's supervision and control," such that if DCFS were "abusing its responsibility" regarding visitation, this could easily be brought to the attention of the court. (Ibid.) No such oversight of Mother exists here, and Mother, unlike DCFS, is not statutorily bound to act in the best interests of the child in making decisions regarding visitation.
Mother also cites Moriah T., in which the Court of Appeal considered a visitation order pending a hearing to select and implement a plan of adoption, guardianship, or long-term foster care. (Moriah T., supra, 23 Cal.App.4th at pp. 1372-1373.) The order permitted father to visit the children "regularly" and in a manner consistent with the children's well-being, as determined by Child Protective Services. (Ibid.) In affirming the order, the Court of Appeal relied, as in Christopher H., on the fact that dependency proceedings were ongoing. Under these circumstances, Child Protective Services' exercise of this discretion would be subject to juvenile court oversight and control and would exist only during the relatively brief period of juvenile court jurisdiction. (Id. at pp. 1375-1376.) In this way, both Christopher H. and Moriah T. are factually inapposite and do not dictate the result here.
DISPOSITION
The court's custody order is reversed in so far as it grants Father, Eric M., visitation in an amount "mutually agreed" to by parents. The court is instructed to revise its order to include a minimum amount and/or frequency of Eric M.'s visits, although decisions regarding the logistical details of the visits, including but not limited to the place, specific time of day, and/or identity of the monitor, may be delegated to the parents.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.