Los Angeles County Department of Children & Family Services v. Robert S.

Opinion

CHANEY, J. —The sole contention on this appeal is that the juvenile court abused its discretion by delegating the determination of the details of visits by appellant Robert S. (Father) with his children to the children’s legal guardian. Father does not challenge the order granting guardianship. We will reverse the visitation order and remand for the trial court to specify the frequency and duration of visits.

BACKGROUND

There is a lengthy and tortured background regarding Father and his three children, but those facts are not pertinent to the issue on appeal. Suffice it to say that Father had been incarcerated and wanted to reestablish his relationship with his children. The children came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in October 2006, based on their living situation with their mother and stepfather.

In January 2007, the children were declared dependents of the court pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b).1 Following numerous hearings and reviews of the situation, in April 2009, the juvenile court named Lorraine A. (Maternal Aunt) the children’s legal guardian, pursuant to section 366.26, and terminated jurisdiction.

[1313]Father challenges only the visitation order, which provided in full as follows: “And as to visitation, that while I will order that the parents have monitored visits, your responsibility as a guardian is to arrange the frequency, location, duration, et cetera, taking into consideration the children’[s] well-being.” The written order similarly provided as follows: “Monitored visits for parents. Duration, frequency and location to be determined by the legal guardian.” At the April 2009 hearing, the court asked if there were any questions, but Father did not object to the visitation order or ask any questions. Father filed a notice of appeal.

DISCUSSION

Father contends that the juvenile court improperly delegated discretion to Maternal Aunt in its visitation order. In a section 366.26 permanency hearing, if the court appoints a legal guardian for children who are dependents of the court, “[t]he 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.” (§ 366.26, subd. (c)(4)(C).) The statute has gone through various permutations, but, in its most recent amendment, “the Legislature made clear its intent to require juvenile courts to make visitation orders in both long-term foster care placements and legal guardianships.” (In re M.R. (2005) 132 Cal.App.4th 269, 274 [33 Cal.Rptr.3d 629]; see also In re S.J. (2008) 167 Cal.App.4th 953, 961-962 [84 Cal.Rptr.3d 557] [discussing the history of the provision].) Thus, pursuant to section 366.26, the juvenile court here “was required to make a visitation order unless it found that visitation was not in the children’s best interest,” and the juvenile court “could not delegate authority to the legal guardian to decide whether visitation would occur.” (In re M.R., supra, 132 Cal.App.4th at p. 274.)