Los Angeles County Department of Children & Family Services v. Michael W., 3 Cal. App. 5th 511

Background

In Dec. 2013 DCFS removed Korbin (born 2004) from Mother and filed a dependency petition; Father’s whereabouts were unknown.
The juvenile court found DCFS used due diligence to locate Father under Welf. & Inst. Code §361.5(b)(1) and therefore did not order reunification services for him, but authorized monitored visits if he contacted DCFS.
Father’s whereabouts were not known within six months; he first contacted DCFS in July/August 2015 (about 20 months after removal) and expressed willingness to care for Korbin.
At the §366.26 proceeding, Korbin (through counsel) and Mother opposed visits; the juvenile court ordered that DCFS facilitate monitored therapeutic visits but gave Korbin sole discretion whether visits would occur.
Father appealed the delegation of visitation authority to Korbin; the Court of Appeal reviewed whether the court could (1) order visitation when reunification services were not required under §361.5(b)(1) and (2) whether it could give the child sole discretion to permit visits.

Issues

Issue	Father’s Argument	Korbin’s Argument	Held
Whether court could order visitation when father wasn’t entitled to reunification services under §361.5(b)(1)	Court may still order visitation under §362(a) discretion	No statutory right to visits so delegation not restricted by reunification cases	Court may order visitation under §362(a) if in child’s best interests
Whether juvenile court may give child sole discretion to decide whether visits occur	Such delegation improperly removes father’s visitation rights and system oversight	Child’s opposition and lack of parent relationship justify leaving decision to child	Court cannot delegate sole discretion to the child; must set terms and ensure at least minimum visits if ordered
Standard for supervision of visits ordered absent reunification services	Court must supervise and set parameters similar to reunification visitation	Agency/child/guardian can manage whether visits occur when parent has no reunification right	Court retains ultimate supervision and control; may delegate details but not the decision whether visits occur
Remedy for improperly delegating visitation to child	Reverse only if prejudice; ask court to re-evaluate visits in light of child’s views	Upheld delegation because father had no statutory right to visits	Reversed visitation order; remanded to reconsider whether visits are appropriate and, if so, set terms under court supervision

Key Cases Cited

In re Ethan J., 236 Cal.App.4th 654 (2015) (court may not abdicate supervision by letting child or third party control whether visitation occurs)
In re T.H., 190 Cal.App.4th 1119 (2010) (visitation authority resides with the court; details may be delegated but ultimate control remains judicial)
In re Kyle E., 185 Cal.App.4th 1130 (2010) (improper delegation to agency over whether visitation would occur)
In re Hunter S., 142 Cal.App.4th 1497 (2006) (court must enforce visitation even if child refuses; child cannot control whether visits occur)
In re S.H., 111 Cal.App.4th 310 (2003) (child’s wishes cannot be sole factor in determining visitation)
In re Julie M., 69 Cal.App.4th 41 (1999) (abuse of discretion when children given absolute discretion to deny parental visits)
In re Christopher H., 50 Cal.App.4th 1001 (1996) (delegation of whether visitation occurs violates separation of powers)
In re Corrine W., 45 Cal.4th 522 (2009) (§362(a) grants broad discretion to fashion dispositional orders in child’s best interests)
In re Nicholas B., 88 Cal.App.4th 1126 (2001) (visitation may not be dictated solely by the child though child’s wishes matter)
In re J.N., 138 Cal.App.4th 450 (2006) (when parent has not participated in reunification, visitation need not be integral)
In re D.B., 217 Cal.App.4th 1080 (2013) (court’s visitation discretion is less constrained after reunification services end)
In re A.A., 203 Cal.App.4th 597 (2012) (standards for relief under §388: changed circumstances and best interests)