In re Jesse N.

Filed 6/26/07 In re Jesse N. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellant, the mother of the minor, appeals following a permanent plan hearing at which a plan of guardianship was ordered for the minor. (Welf. & Inst. Code, 366.26, 395; unspecified section references that follow are to the Welfare and Institutions Code.) Appellant challenges the juvenile courts visitation order, claiming it granted too much discretion to the guardians. We agree.

Accordingly, we shall reverse the order dismissing dependency jurisdiction and remand the matter with directions to conduct further proceedings and enter a new visitation order.

Facts and Proceedings

Juvenile dependency proceedings were initiated concerning the 12-year-old minor in December 2004 based on appellants substance abuse and its impact on her ability to properly care for the minor. The minor had tested positive at birth for cocaine and had been the subject of dependency proceedings in 2000 based on appellants substance abuse, after which appellant successfully reunified.

The minor was placed with his paternal aunt and uncle. Following jurisdictional and dispositional hearings, the juvenile court adjudged the minor a dependent of the court and ordered reunification services for appellant, including regular visitation . . . consistent with the [minors] well being.

One week after the dispositional hearing, appellant tested positive for cocaine. In January 2006, the court sustained the minors petition for modification seeking termination of reunification services, and set the matter for a hearing pursuant to section 366.26 to select a permanent plan for the minor. The court ordered visitation to continue as previously ordered.

The social worker recommended a permanent plan of guardianship with the paternal aunt and uncle, with contact between the minor and appellant to be arranged with the guardian and subject to any reasonable conditions, including supervision, as the guardian considers necessary. According to the social workers report, [c]ontact between [appellant] and [the minor] has been somewhat difficult due to a variety of situations. Appellant claimed the minor was not contacting her because he was being intimidated by his caretakers, but the minor denied this. Although the minor reported that he wanted to continue to have visits with appellant, he had not asked to visit her since it was decided that a guardianship would be pursued.

At the section 366.26 hearing, the minors attorney asked the court to delegate to the guardians the decision of whether to allow appellant visits with the minor. According to the minors attorney, the guardians had no objection to visitation. Appellant objected to an order leaving visitation to the discretion of the guardians.

The juvenile court appointed the aunt and uncle as the minors guardians and terminated dependency jurisdiction. With regard to visitation, the court ordered that appellant was to be allowed contact and visitation with the minor as arranged by the guardians subject to any reasonable conditions including the need for supervision as the guardian considers necessary. The court added: My order should be clear for the guardians to understand [appellant] shall have contact with the [minor]. The guardians dont get to decide that contact is not appropriate and just stop it. To the extent that the Court has ordered that there shall be visitation, the guardians, I believe, are in the best position to determine how frequent that visitation should be consistent with [the minors] physical and emotional well-being. The court noted it was very, very clear that the minor did not want to have contact with appellant as of the time of the hearing. The court concluded by stating that the minor did not have to be forced to visit appellant, but the guardians cannot interfere with his ability to see [her].

Discussion

Appellant contends the juvenile courts visitation order gave too much discretion to the guardians because it provided insufficient guidance about the circumstances under which visitation was to be allowed. We must agree.

When guardianship is selected as the permanent plan at a section 366.26 hearing, the juvenile court is required to order visitation with the parents unless it finds that visitation would be detrimental to the childs well-being. (Welf. & Inst. Code, 366.26, subd. (c)(4)(C).) In fashioning a visitation order, the court may delegate the responsibility of managing the details of visitation--including time, place and manner--but not the decision whether visitation will occur at all. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.).)

Thus, in Moriah T., this court upheld an order entered at an 18-month review hearing for the father to visit regularly with the children consistent with [their] well-being . . . and at the discretion of [the social services agency] as to the time, place, and manner. (Moriah T., supra, 23 Cal.App.4th at p. 1371.) As the juvenile courts order mandated regular visitation, the social services agency was not given absolute discretion to decide whether visits would occur. (Ibid.) In addition, we concluded it was not an improper delegation of authority to allow the social services agency to determine the frequency and length of visits when the order provided for regular visitation. (Id. at pp. 1376-1377; cf. In re M.R. (2005) 132 Cal.App.4th 269, 274-275 [matter remanded with directions to specify parents right to visitation and the frequency and duration of visits]; In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 [court should determine right to visitation and frequency and length of visitation].)

Applying these principles in the present matter, we conclude the juvenile courts order delegated more than merely the details of visits to the guardians. Although the court ordered that appellant was to be allowed contact and visitation under conditions deemed reasonable by the guardians, the order did not provide any real assurance that visitation would occur. Unlike in Moriah T., the visitation order here contained no requirement that regular visitation occur. Instead, the guardians were given discretion to determine the frequency of visits consistent with the minors physical and emotional well-being. Although the court clearly intended for appellant to be allowed continued contact with the minor, the express terms of the order would permit the guardians to limit visits to whatever extent they deem reasonable or necessary. Since the guardians could conceivably decide that, due to the best interests of the minor, it was reasonable and necessary to disallow visits on a continuing basis or limit them to brief telephone conversations, the order was tantamount to one giving absolute discretion to determine whether any visitation took place to the guardians. As such, appellants entitlement to any regular, meaningful visitation was illusory. As the juvenile courts visitation order vested nearly unlimited discretion in the hands of the guardians, it was an abuse of discretion.

On remand, the juvenile court must enter a new visitation order granting appellant regular visits subject to reasonable conditions. The court shall consider current circumstances in fashioning an appropriate order.

Disposition

The orders terminating dependency jurisdiction and granting visitation are reversed and the matter is remanded to the juvenile court for further proceedings consistent with the views expressed herein.

HULL, Acting P.J.

We concur:

ROBIE , J.

BUTZ , J.

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