In Re JH

133 Cal. Rptr. 2d 773, 108 Cal. App. 4th 616
CourtCalifornia Court of Appeal
DecidedMay 9, 2003
DocketH025258
StatusPublished

This text of 133 Cal. Rptr. 2d 773 (In Re JH) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re JH, 133 Cal. Rptr. 2d 773, 108 Cal. App. 4th 616 (Cal. Ct. App. 2003).

Opinion

133 Cal.Rptr.2d 773 (2003)
108 Cal.App.4th 616

In re J.H. et al., Persons Coming Under the Juvenile Court Law.
Santa Clara County Department of Family and Children's Services, Plaintiff and Respondent,
v.
S.G., Defendant and Appellant.

No. H025258.

Court of Appeal, Sixth District.

May 9, 2003.
Rehearing Denied May 30, 2003.

*774 Ann Miller Ravel, County Counsel, Teri L. Robinson, Deputy County Counsel, for Plaintiff/Respondent Santa Clara County Department of Family and Children's Services.

George W. Kennedy, District Attorney, Robert J. Masterson, Deputy District Attorney, for Respondent Children J.H. et al.

Sixth District Appellate Program, Jonathan Grossman, Stockton, for Defendant/Appellant S.G.

PREMO, Acting P.J.

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

J.H. and CH. were taken into protective custody on October 30, 1998. The two *775 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.

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. DISCUSSION

1. 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 *776 giving unfettered discretion to the guardian.[3] (In re Randalynne G. (2002) 97 Cal. App.4th 1156, 1163, 118 Cal.Rptr.2d 880 (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, 110 Cal.Rptr.2d 562 (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.

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 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,

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Bluebook (online)
133 Cal. Rptr. 2d 773, 108 Cal. App. 4th 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jh-calctapp-2003.