Opinion
Michael W. (Father) appeals from an order of the juvenile court on his pehtion under Welfare and Institutions Code section 388
As we explain below, we conclude that where, as here, the court has not ordered reunification services because, under section 361.5, subdivisions
FACTUAL AND PROCEDURAL BACKGROUND
In October 2013, Korbin (born Oct. 2004) lived with his mother, K.T. (Mother), his half sister (born Jan. 2010), and Mother’s male companion, Rene A.
The section 300 petition alleged that Mother and Rene engaged in a violent confrontation in the children’s presence; Mother and maternal grandmother engaged in a violent confrontation in the children’s presence; Mother had mental and emotional problems and failed to take her psychotropic medication; and Mother was a current abuser of marijuana and alcohol.
Mother and Korbin had not had contact with Father since Korbin was three weeks old. According to Mother, Father had made no efforts to contact her or Korbin since then. Mother told the caseworker that she had obtained a temporary restraining order against Father because of domestic violence.
Father was not present at the December 4, 2013 detention hearing. He was deemed to be Korbin’s presumed father and was granted reunification services and, if he contacted DCFS, monitored visits. The juvenile court found a prima facie case was established for detaining Korbin and ordered him detained with his maternal aunt.
At the February 19, 2014 jurisdiction/disposition hearing, the juvenile court found that due diligence as to Father’s whereabouts had been completed. The court found that Father was Korbin’s legal father and vacated the prior finding of presumed father status. The court declared Korbin a dependent of the court under section 300, subdivision (b), based on the allegation that Mother’s mental and emotional problems rendered her unable to care for the children. The court dismissed the other allegations in the interest of justice. The court did not order reunification services for Father but ordered monitored visits once he contacted the court or DCFS.
At the six-month review hearing in August 2014, the court found that Mother was not in compliance with her case plan. At the 12-month review hearing in February 2015, the court terminated reunification services for Mother and scheduled a section 366.26 hearing for permanent placement. (See § 366.21, subd. (g)(4) [if court does not return child to parent at 12-month hearing, court may order § 366.26 hearing].)
In July 2015, DCFS mailed notice to Father about the section 366.26 hearing on selection of a permanent plan for Korbin. Father contacted DCFS and said that he had been trying to contact the agency for a month. He had not seen Korbin for nine years, but he expressed willingness to have Korbin placed with him. The section 366.26 report stated that Korbin missed Mother and wanted to live with her, but he did not wish to have visits with Father.
Father appeared at the August 2015 section 366.26 hearing. The court continued the hearing and denied Father’s request for DNA testing.
Father filed a section 388 petition in October 2015, asking the court to set aside its February 2014 finding that DCFS issued proper notice to him and to order that Korbin be released to his custody. He argued that DCFS should have found his address because he had ‘“maintained a current address with child support.” He further argued that the requested order would be better for Korbin because it would provide him with ‘“the love and stability a child deserves.”
The court concluded that changing the prior order would be too disruptive for Korbin but expressed the opinion that as Korbin matured, he might want a relationship with Father. Mother objected to any visits, stating that Father had burned her other child with cigarettes and beaten her while she was pregnant. Counsel for Korbin also stated that Korbin did not want any visits with Father. The court expressed the desire to allow monitored visits in the future in case Korbin changed his mind but explained that the decision to have any visits would be Korbin’s. The court thus ordered DCFS to facilitate monitored visits with Korbin and Father in a therapeutic setting at Korbin’s discretion. The court found that the permanent plan of legal guardianship was appropriate and continued the section 366.26 hearing. Father appealed.
DISCUSSION
Father contends that the juvenile court erred in giving Korbin sole discretion over Father’s visitation. We agree. Although the court was not required to order visits for Father, once it did so, it could not delegate the decision whether visitation would occur to Korbin. Rather, the court had the continuing obligation to supervise any such visitation and determine the terms under which visitation would occur. We therefore reverse the visitation order and remand for the court to reconsider whether to order visitation, and if so, the terms of the visitation.
Case law consistently holds that the juvenile court cannot delegate the decision whether visitation will occur to any third party, including the child, the social services agency, or the guardian. (See, e.g., In re Ethan J. (2015) 236 Cal.App.4th 654, 656 [186 Cal.Rptr.3d 740] (Ethan J.) [juvenile court may not terminate dependency jurisdiction knowing that child refused to participate in visitation]; In re T.H. (2010) 190 Cal.App.4th 1119, 1123 [119 Cal.Rptr.3d 1] (T.H.) [“The power to determine the right and extent of
Korbin notes that these decisions limiting a juvenile court’s authority to delegate visitation arise under circumstances where the parent has the right to visit the child as part of a reunification plan. Here, however, Father had no right to visitation. Therefore, Korbin argues, these decisions do not apply to Father’s case.
It is true that Father had no right to visitation. At the February 2014 hearing, the court found that DCFS had established due diligence as to Father. Once that finding was made, Father was not entitled to reunification services, and the court ordered that he be offered no reunification services. (See § 361.5, subd. (b) [‘“Reunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence . . . [¶] . . . [t]hat the whereabouts of the parent or guardian is unknown. . . .”].) Although ‘“[vfisitation is an essential part of a reunification plan,” it ‘“is not integral to the overall plan when the parent is not participating in the reunification efforts.” (In re J.N. (2006) 138 Cal.App.4th 450, 458-459 [41 Cal.Rptr.3d 494] (J.N.); see also In re D.B. (2013) 217 Cal.App.4th 1080, 1090 [158 Cal.Rptr.3d 915] [the court’s discretion over visitation is less constrained after reunification services are terminated, when the focus is ‘“on permanency and stability for the child”].)
Thus, because section 361.5, subdivision (d) did not apply, Father was not entitled to reunification services. And because he was not entitled to reunification services, he had no right to visitation. Nonetheless, no statute precluded the court from ordering visitation even though, under section 361.5, subdivision (b)(1), the court did not order reunification services.
But we also conclude that, having made the decision to order visitation, the court had the obligation to supervise that visitation, and could not delegate to Korbin the authority to determine whether such visitation would occur at all.
Any other rule would cede to Korbin the court’s duty under section 362, subdivision (a) to determine what is in Korbin’s best interests. In other words, under the circumstances present here, where under section 361.5, subdivisions (b)(1) and (d) reunification services have not been ordered, the court may order parental visitation in the exercise of its discretion under section 362, subdivision (a), on a finding that such visitation will serve and protect the minor’s interests. But the court must set the parameters of such visitation. It cannot place in the minor’s hands the sole discretion to determine whether such visitation, which the court has determined is in the child’s best interests, will occur at all.
Thus, we conclude that the court improperly delegated authority to Korbin to decide whether visits with Father would occur. We reverse that portion of the October 2015 order regarding Father’s visitation and remand for further proceedings. On remand, in light of Korbin’s opposition to visits with Father, the court may reconsider whether the visits are in Korbin’s best interests. (See Hunter S., supra, 142 Cal.App.4th at p. 1508 [“In conducting a new section 388 hearing, given the passage of time and the consistent intensity of Hunter’s resistance, it may be appropriate for the juvenile court to further consider if, under the circumstances and in light of current information, visits would be detrimental to Hunter”]; J.N., supra, 138 Cal.App.4th at p. 459 [no abuse of discretion in court’s finding that contact with the mother would not be in the child’s best interest where the mother had “not seen him for nine years,” and it was reasonable to infer there was not a strong relationship between them].) If the court nonetheless orders visitation, it must set the terms of such visitation, mindful of the rule that “[a] visitation order may delegate to a third party the responsibility for managing the details of visits, including their time, place and manner. [Citation.] That said, ‘the ultimate supervision and control over this discretion must remain with the court [Citation.]” (T.H., supra, 190 Cal.App.4th at p. 1123.)
The portion of the October 28, 2015 order regarding Father’s visitation is reversed. The matter is remanded for the juvenile court to reconsider whether to order visitation, and if so, the terms of such visitation. In all other respects the order is affirmed.
Unspecified statutory references are to the Welfare and Institutions Code.
The Los Angeles County Department of Children and Family Services takes no position in this appeal and therefore did not file a brief.
The half sister and Mother are not parties to this appeal.
Father was not entitled to reunification services under section 361.5, subdivision (b)(1), which states that services need not be provided if the court finds that the parent’s whereabouts are unknown.
We note that section 361.5, subdivision (f) provides, in substance, that when the court does not order reunification services under subdivision (b)(2) through (16) or subdivision (e)(1), it “may,” pending the section 366.26 hearing, “continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child.” These listed subdivisions concern circumstances where no reunification services are ordered for reasons such as mental disability, death of another child, sexual abuse, severe physical harm, and conviction of a violent felony. They do not include the situation here, where no reunification services were ordered under subdivision (b)(1) of section 361.5, because Father’s whereabouts were unknown. Nonetheless, while section 361.5, subdivision (f) does not specifically authorize the court to order visitation when no reunification services are ordered under subdivision (b)(1), it also does not preclude such an order.