Filed 10/31/18 In re David P. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Robin L. Wolfe, Judge.

Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant.

Deanne H. Peterson, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.

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The parties seek a stipulated reversal of the juvenile court’s order issued at a Welfare and Institutions Code, section 366.26 hearing[1] in May 2018 appointing legal guardians for now 13-year-old David P. and terminating its dependency jurisdiction without ordering visitation for appellant Jessica H. (mother) as required under section 366.26, subdivision (c)(4)(C). We accept the stipulation, remand with directions for the juvenile court to comply with the statute and order an immediate issuance of the remittitur.

PROCEDURAL AND FACTUAL SUMMARY

David, along with his older sister and three brothers, was removed from mother’s custody in September 2013 by the Tulare County Health and Human Services Agency (agency) after mother was arrested for being under the influence of a controlled substance and David’s father, Marcos, was unable to be located. The children were returned to mother’s custody in March 2015 under family maintenance services at the 18-month review hearing but removed a year later after mother and the two older children were arrested. In December 2016, the court ordered the children into foster care with a goal of legal guardianship.

In December 2017, the agency recommended the juvenile court approve a permanent plan of legal guardianship for David with his foster parents. Following a contested section 366.26 hearing in May 2018, the juvenile court established a legal guardianship for David and terminated its dependency jurisdiction. The court did not order visitation for mother and granted the legal guardians discretion whether to arrange visitation between David and his grandparents and siblings.

Mother filed an appeal, arguing the juvenile court erred in failing to order visitation for her and for granting the legal guardians discretion to determine whether visitation would occur between David and his siblings and grandparents. The parties subsequently filed a “Joint Application and Stipulation for Reversal of Judgment and Remand of Action to the Superior Court.”

DISCUSSION

The parties seek a stipulated reversal on the ground that the juvenile court failed to comply with section 366.26, subdivision (c)(4)(C), which requires it to order visitation for the parent when it selects legal guardianship as the permanent plan unless it finds visitation would be detrimental to the child. In that the court failed to order visitation or deny it on a finding of detriment, we grant the motion.

In light of the parties’ stipulation, we do not reach mother’s issue on appeal regarding whether the juvenile court erred in granting the legal guardians discretion to determine if David would visit with his siblings and grandparents. Assuming mother has standing to raise the issue, she may do so before the juvenile court on remand when it issues the appropriate visitation orders.

DISPOSITION

The juvenile court is directed to make appropriate visitation orders pursuant to Welfare and Institutions Code section 366.26, subdivision (c)(4)(C). The Clerk/Executive Officer of this court is directed to issue a remittitur forthwith. (Cal. Rules of Court, rule 8.272(c)(1).)