In re Tyler K.
Filed 7/27/06 In re Tyler K. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
| In re TYLER K. et al., Persons Coming Under the Juvenile Court Law. | B184750 (Los Angeles County Super Ct. No. CK50930) |
| LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SUZANNE H., Defendant and Appellant. |
APPEAL from orders of the Superior Court of Los Angeles County. Lori Schroeder, Juvenile Court Referee. Affirmed and remanded with directions.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Suzanne H. appeals from orders of the juvenile court pursuant to Welfare and Institutions Code section 366.26.[1] Respondent Los Angeles County Department of Children and Family Services (the Department), concedes that notices were not properly sent pursuant to the Indian Child Welfare Act (25 U.S.C. § 1901 et. seq.) (ICWA). We remand the matter to the juvenile court to effectuate proper notice under ICWA and to issue visitation orders in compliance with section 366.26, subdivision (c)(4)(C).
FACTS AND PROCEDURAL HISTORY
The Department filed a section 300 petition alleging that brothers Tyler K. and Tellez K. were sexually abused by another sibling. On December 12, 2002, at Tyler's detention hearing, Mother informed the juvenile court that the minors' father was Indian. Although the juvenile court ordered the Department to provide notice pursuant to ICWA, the detention report regarding Tyler and another sibling stated that ICWA did not apply. The disposition report for Tellez and Tyler indicated that a letter had been sent to the Bureau of Indian Affairs (BIA). However, a copy of that letter was not attached to the report.
On July 14, 2005, at Tellez's section 366.26 hearing, the juvenile court ordered him placed in long-term foster care with his paternal aunt. On July 28, 2005, at Tyler's continued section 366.26 hearing, the juvenile court ordered him into legal guardianship with his paternal grandmother. The juvenile court also ordered Mother's visits with Tyler to be monitored at the discretion of the legal guardian. The juvenile court ordered monitored visits for Mother with Tellez.
This appeal followed.
DISCUSSION
I. The matter shall be remanded to the juvenile court for proper notice under ICWA
When the juvenile court has reason to know that a child has Indian ancestry, the Department must notify the tribe or the BIA. (25 U.S.C. § 1912(a).) It is undisputed that Mother informed the juvenile court that the minors were of Indian descent. The Department concedes that notices under ICWA were not adequate, because there is no record that a letter of inquiry had been sent to the BIA. We agree with the Department that the matter should be remanded for proper ICWA notice. We disagree with Mother that the matter therefore needs to be reversed. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385.)
II. The matter shall be remanded so that the juvenile court may amend its visitation orders
Section 366.26, subdivision (c)(4)(C) requires the juvenile court to make visitation orders when it selects guardianship or long-term foster care as a child's permanent plan.
Because the juvenile court must determine whether visitation is in the child's best interest, it cannot delegate authority to the legal guardian to decide whether visitation will occur. (In re M.R. (2005) 132 Cal.App.4th 269, 274.) While the court may delegate authority to the legal guardian to decide the time, place and manner of the visitation, the delegation of every aspect of visitation is an abuse of discretion. (Ibid.)
Mother complains that the paternal relatives had not made the minors available for visitation for several months, even though the juvenile court had ordered monitored visitation. The Department agrees that the matter should be remanded, but that it need not be reversed. On remand, the juvenile court shall amend its visitation orders to specify that Mother has the right to visit the minors, as well as the frequency and duration of those visits. (In re M.R., supra, 132 Cal.App.4th at p. 274.)
DISPOSITION
The matter is remanded to the juvenile court with directions that the juvenile court shall: (1) direct the Department to comply with the notice provisions of the ICWA, and (2) amend the visitation orders specifying Mother's right to visit the minors, the frequency, and the duration of those visits, in compliance with section 366.26, subdivision (c)(4)(C). In all other respects, the orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________, J.
CHAVEZ
We concur:
____________________, Acting P. J.
DOI TODD
____________________, J.
ASHMANN-GERST
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[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
