Opinion
B163301
7-24-2003
In re THEODORA J., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. WANDA L., Defendant and Appellant.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel and Arezoo Pichvai, Deputy County Counsel for Plaintiff and Respondent.
In this dependency case, mother claims the juvenile court should have made precise orders for visitation in the legal guardianship. We conclude the visitation order is sufficient and affirm.
FACTUAL AND PROCEDURAL SUMMARY
In November 2000, mother Wanda L. was arrested on drug charges. Two of her children, ages six and nine, were living with her at the time. They were detained and adjudicated dependent children. They have been in foster care with Betty W. since the time of their detention. Mother has been incarcerated during the entire course of this case. While incarcerated, she has participated in all services appropriate to her reunification plan, and has maintained regular contact with these children through letters and telephone calls.
At the review hearing in May 2002, the court commended mother on her efforts at rehabilitation and found that mother kept in consistent contact with the children and had a relationship with them. Despite this, the court concluded it had no legal basis for extending reunification. The court terminated reunification services and set a permanency planning hearing.
The permanency planning hearing began on August 1, 2002. The Department of Children and Family Services recommended legal guardianship by the foster mother, as the permanent plan. Mother objected to this plan, and requested that the children be placed in long-term foster care. The court selected legal guardianship as the most permanent plan appropriate for the children. The court then took the guardianship testimony from Betty, the foster mother and prospective legal guardian. Betty was asked whether she would continue to allow mother to have contact with the children and visitation after her release from prison. She said that she would. The court continued the matter for proper notice to the fathers, stating: "The court will execute these orders and under the visitation section will indicate that the parents visits would be monitored either by the legal guardian or by her designee. The discretion to liberalize would be with the legal guardian." The minute order from that date reads: "Parents are to have monitored visits monitored by legal guardian or by her designee. Discretion to liberalize will be with legal guardian."
Guardianship was granted at the continued hearing on October 15, 2002. The form orders signed that day do not address visitation, but the minute order for that date states: "All prior orders not in conflict shall remain in full force and effect." Attached to the letters of guardianship was a form acknowledgement, signed by Betty, in which she acknowledges that if she is appointed as guardian of the children, she shall "make all decisions concerning parental visits with the minor including promoting or limiting such visitation according to the best interests of the minor or as ordered by the court . . . ."
The court terminated dependency jurisdiction on November 5, 2002, and mother appeals.
DISCUSSION
Mother claims the court failed to make an adequately detailed visitation order, leaving too much discretion to the legal guardian. Although this issue was not raised in the trial court, respondent does not argue waiver, and we will proceed to the merits. (The issue of waiver is pending before the Supreme Court in In re S.B. (2002) 103 Cal.App.4th 739; review granted Jan. 22, 2003, No. S112260.)
Welfare and Institutions Code section 366.26, subdivision (c)(4) provides that if the court finds that adoption or termination of parental rights is not in the best interest of the child, "the court shall either order that the present caretakers or other appropriate persons shall become legal guardians of the child or order that the child remain in long-term foster care. Legal guardianship shall be considered before long-term foster care, if it is in the best interests of the child and if a suitable guardian can be found. When the child is living with a relative or a foster parent who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian, the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the relative caretaker or foster parents. The court shall also make an order for visitation with the parents or guardians 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." (Italics added.)
There is a split of authority as to whether the juvenile court is required to make an order regarding visitation when the selected permanent plan is guardianship. (See In re Jasmine P. (2001) 91 Cal.App.4th 617, 621 [requirement for a visitation order in the statute applies only where the permanent plan is long-term foster care for a child who has been living in a stable and permanent environment with a relative or foster parent who is not willing to become a legal guardian]; In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1163, fn. 7 ["In our view, section 366.26, subdivision (c)(4) requires a visitation order whenever the permanent plan is guardianship, unless the court finds that such visitation would be detrimental to the child."]; see also In re J.H. (2003) 108 Cal.App.4th 616, 620-621 [the visitation order required by section 366.26, subdivision (c)(4) applies whether the child is place in foster care or in a guardianship.].)
We need not resolve this question because the juvenile court made a visitation order in our case: "Parents are to have monitored visits monitored by legal guardian or by her designee. Discretion to liberalize will be with legal guardian." The question is whether the order is sufficiently specific, or whether the court improperly delegated its authority by granting too much discretion to the guardian. (This issue is also before the Supreme Court in In re S.B., supra, 103 Cal.App.4th 739; No. S112260.)
"A court may not delegate its discretion to determine whether any visitation will occur, but it may delegate decisions such as the time, place and manner of visitation." (In re Randalynne G., supra, 97 Cal.App.4th at p. 1164.) In Randalynne G., the challenged visitation order provided: " Visitation between the child and mother and father shall be as directed by the legal guardian in this case." (Id. at p. 1163.) The court found this to be an improper delegation of authority because "it left the entire issue of visitation in the hands of the guardian. It did so even though it had before it the social workers report, which states that the guardian did not want to be involved in visitation and the guardian was requesting that the Department continue to administer visitation. In light of this fact, it would be disingenuous to claim that the guardian was merely administering visitation." (97 Cal.App.4th at p. 1165.)
The delegation in our case is more limited. The court expressly ordered visitation for the parents, monitored by the guardian or her designee. While the order does not spell out the frequency or duration of the visits, it does provide that there shall be visitation, and the only discretion given to the guardian was to liberalize visitation. Unlike the circumstances in Randalynne G., where the guardian did not want any visitation to take place (97 Cal.App.4th at p. 1165), the guardian in this case testified in open court that she would continue to allow mother to have contact with the children and visitation after her release from prison. The limited grant of discretion to the guardian is reasonable and is not an abrogation of the courts authority. We conclude the visitation order is sufficient.
If the guardian exercises her discretion in a manner which deprives mother of her right to visitation, mother may seek relief from the court. The court terminated jurisdiction over the children as dependents of the juvenile court, but the children are still within the jurisdiction of the juvenile court as wards of the legal guardianship. ( §§ 366.3, subd. (a), 366.4.)
DISPOSITION
The orders are affirmed.
We concur: HASTINGS, J., CURRY, J.