In re Kiara T.
Filed 6/24/13 In re Kiara T. CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re KIARA T., a Person Coming
Under the Juvenile Court Law.
B245115
(Los Angeles
County
Super. Ct.
No. CK00259)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
PRUDENCE S.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court
of
County.
Amy M. Pellman, Judge.
Reversed and remanded.
M.
Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, County Counsel,
Denise M. Hippach, Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________________
Prudence S. (Mother) appeals from the denial of her
petition brought pursuant to Welfare and Institutions Code section 388. Both Mother and the Department of Children
and Family Services (DCFS) agree that the order currently in effect giving the
legal guardian discretion to determine visitation is in error. We reverse the trial court’s order denying
Mother’s petition and remand the matter to the dependency court to determine
whether visitation is appropriate and, if so, to specify the frequency and
duration of the visits.
BACKGROUND
Kiara T.
was born in 1998, testing positive for cocaine at birth. Seven of her older siblings were already
dependents of the court due to Mother’s drug use. A petition was filed on Kiara’s behalf
pursuant to Welfare and Institutions Code section 300, subdivisions (b), (i),
and (j),
with her paternal grandmother, Carol C., when she was approximately three
months old. In January 2001, the court
ordered guardianship with Carol C. as the permanent plan for Kiara. Letters of guardianship were issued granting
visitation rights between Kiara and Mother, at the discretion of the legal
guardian. On March 14, 2003, the court terminated jurisdiction
over Kiara’s case with Kin-Gap funding in place for Carol C. as the guardian.
On August 23, 2012, Mother filed a
section 388 petition, apparently seeking a change in
certificates and awards documenting her recent achievements, including
completion of a drug court program in 2008.
A report
responding to the section 388 petition was filed in September 2012 by a DCFS
social worker. The report noted that
Mother has an extensive criminal history dating back to 1988, with convictions
for drug possession, theft, and prostitution.
Kiara was interviewed for the report.
She said that she did not want to live with Mother because she did not
like where Mother lived and, when she was younger and would visit Mother,
Mother’s younger daughter fought with her.
Kiara told the social worker that she was not interested in having any
further visits with Mother. She did not
love Mother and Mother had never provided her with anything. She had last seen Mother about a year before,
and Mother did not regularly call her.
Kiara wished to stay with Carol C., who was very good to her and taught
her a lot.
Mother was
interviewed for the report and stated that she wished for Kiara to have a
relationship with Mother’s younger daughter.
Mother said that Carol C. was preventing Mother from having contact with
Kiara. Mother wanted Kiara to be happy,
and she understood that Kiara was old enough to decide where she wanted to
live.
Carol C.
was also interviewed for the report. She
stated that Kiara had a “horrible†relationship with Mother and had not seen
her in more than a year. She said that
Mother did not call Kiara on her birthday or for Christmas. According to Carol C., Mother did not love
Kiara and filed the section 388 petition only to spite Carol. Ever since Kiara found out that Mother had
filed the petition, Kiara had been waking up in the middle of the night and
going to sleep with Carol C. because she was scared.
Mother’s
section 388 petition was heard on September,
27, 2012. The court denied
the petition and ordered that the termination of jurisdiction orders remain in
full force and effect.
Mother
timely appealed.
DISCUSSION
Section
366.26, subdivision (c)(4(C), which applies when a court orders legal
guardianship for a child, provides that the “court shall . . . make an order
for visitation with the parents . . . unless the court finds by a preponderance
of the evidence that the visitation would be detrimental to the physical or
emotional well-being of the child.â€
Because the
dependency court is required to make a visitation order unless it finds that
visitation is not in the child’s best interest, the court may not delegate to
the legal guardian the authority to decide whether visitation will be
allowed. (In re M.R. (2005) 132 Cal.App.4th 269, 274.) “The court may delegate authority to the
legal guardian to decide the time, place, and manner in which visitation will
take place†(ibid.), but the court
itself must decide whether and how often visitation will occur (
1123).
The
dependency court here ran afoul of this rule in 2001 when it ordered that
visitation would be at the discretion of the legal guardian. It failed to correct the error in September
2012 by denying Mother’s section 388 petition without making any change to the
visitation order.
Accordingly,
on remand the trial court must determine whether visitation between Mother and
Kiara is warranted and, if it is, specify the frequency and duration of
visitation. (See In re M.R., supra, 132
Cal.App.4th at p. 274.)
DISPOSITION
The order
denying Mother’s section 388 petition is reversed, and the matter is remanded
to the dependency court with directions to determine whether to order
visitation for Mother. If an order for
visitation is issued, the dependency court shall specify the frequency and
duration of Mother’s visits.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
FERNS, J.*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
