In re Jarred H. 5/9/03 CA6

SUPREME COURT CASES

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H025258

Case Date: 05/09/2003

Preview:Filed 5/9/03

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT In re JARRED H. et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. STEPHANIE G., Defendant and Appellant. After the juvenile court appointed a legal guardian for 12-year-old J.H. and his eight-year-old brother C.H., the court ordered "reasonable" visitation with their mother S.G. (Mother) and terminated the dependency. The visitation order gave the legal guardian discretion to determine the time, place, and manner of the visits. Mother appeals from that order contending that the court impermissibly delegated its authority to the guardian. We shall affirm. A. PROCEDURAL AND FACTUAL BACKGROUND H025258 (Santa Clara County Super. Ct. Nos. JD10422, JD10423)

J.H. and C.H. were taken into protective custody on October 30, 1998. The two boys were initially returned to their mother, but her compliance with the case plan was inconsistent. The court finally removed the children from Mother's custody when she kicked and beat J.H. and threatened to kill him. Mother moved out of her parents' home,

where she had been living with her two boys, and the court placed the boys with their grandparents. The Santa Clara County Department of Family and Children's Services (the Department) provided reunification services for the next 18 months. Mother's compliance with the case plan continued to be inconsistent and the Department became concerned about reports of violence between Mother and her new husband. The juvenile court terminated reunification services on April 25, 2001 and set a hearing pursuant to Welfare and Institutions Code section 366.26.1 On June 12, 2002, the juvenile court entered its order appointing the maternal grandmother as the boys' legal guardian.2 The court ordered supervised visitation with Mother once a week for two hours, at minimum. A review hearing was held on October 16, 2002 to consider dismissing the case. The Department recommended a visitation plan that would allow supervised visitation at the discretion of the maternal grandparents. Mother objected to the recommendation stating that she wanted it "made more clear." She pointed out she had only one visit in July and one in August but that "[r]ecently it's been going okay." The boys' grandmother explained that visitation was complicated by the fact that Mother lived in the next town and did not have a telephone or a car. Grandmother generally drove the boys to visit Mother, sometimes unannounced because she could not telephone ahead. Grandmother also explained that sometimes the boys had activities they wanted to do on the weekends. It was agreed that the boys enjoyed visits with their mother when they did occur.
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Hereafter all statutory references are to the Welfare and Institutions Code.

Mother has appealed three prior orders in this matter. We have taken judicial notice of the record in those cases: H023641 (dismissed), H023944 (Jul. 25, 2002 [nonpub. opn.]), and H024581 (Jan. 7, 2003 [nonpub. opn.]). Our recitation of the facts and procedural background is taken from our review of the combined record in these cases.

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After hearing from the parties, the court ordered visitation as follows: "Mother is entitled to reasonable visitation consistent with the well-being of the minors. Guardian to have discretion to determine time, place and manner." B. ISSUES

1. When a legal guardianship is ordered, does section 366.26, subdivision (c)(4) (hereafter subd. (c)(4)) require the juvenile court to order visitation with the parent(s) absent a finding of detriment? 2. When a legal guardianship is ordered, does an order for "reasonable visitation consistent with the well-being of the minor" and granting discretion to the guardian to determine the time, place, and manner of the visits impermissibly delegate the authority of the juvenile court? C. 1. DISCUSSION

Is the Juvenile Court Required to Make a Visitation Order?

Mother contends that subdivision (c)(4) requires the juvenile court to make a visitation order when a minor is placed in a legal guardianship unless the court finds visitation would be detrimental to the child. She argues that because the court must make a decision about visitation, the court may not delegate its authority by giving unfettered discretion to the guardian.3 (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1163 (Randalynne G.).) The Department and the children argue that the visitation order required by subdivision (c)(4) applies only when the child is placed in long-term foster care; in the case of guardianship, the juvenile court may entirely delegate the decision. (In re Jasmine P. (2001) 91 Cal.App.4th 617 (Jasmine P.).) We conclude that the visitation order required by subdivision (c)(4) applies whether the child is placed in foster care or in a guardianship. This issue is presently on review in the Supreme Court. (In re S.B. (2002) 103 Cal.App.4th 739; review granted Jan. 22, 2003, No. S112260.)
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Subdivision (c)(4) provides: "If the court finds that adoption of the child 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.) Subdivision (c)(4) refers generally to cases in which adoption has been rejected as a permanent plan. The first sentence of the subdivision requires the juvenile court to decide between placing the child in long-term foster care or in a legal guardianship. The subdivision then limits the court's discretion in that choice by designating legal guardianship as the preferred placement. The next sentence instructs the court to disregard that statutory preference for guardianship and to select long-term foster care under certain circumstances. The final sentence provides that the court shall also make an order for visitation. Thus, the subdivision requires two orders: an order for placement (either guardianship or long-term foster care) and an order for visitation. The language between the two referenced orders circumscribes the court's discretion in making the first order. The word "also" in the final sentence signals the reader that there is another thing the court must do besides select the form of placement, that is, order visitation. Thus, the visitation decision is not connected to the discussion of when to choose foster care over 4

guardianship. Rather, it is simply one of the two orders the court is required to make when it determines that adoption is not in the best interest of the child. Jasmine P., supra, presumed that because subdivision (c)(4) referred to visitation with "the parents or guardians" a visitation order was required only when the child is placed in long-term foster care. (Jasmine P., supra, 91 Cal.App.4th at p. 621.) In our view, the reference to visitation with "parents or guardians" merely acknowledges that a child may be removed from the custody of a parent or guardian and that it may be desirable that the guardian from whom a child was removed be entitled to visitation when the child is placed with another guardian. This interpretation is consistent with the rest of the dependency statutes, commencing with section 300, which provide that a child may be adjudged a dependent child of the court when the child's parent or guardian harms or fails to protect the child. (

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