Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Stanislaus County, Nos. 509074, 509075, Ann Q. Ameral, Judge.
Susan M. O’Brien, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
In this dependency proceeding, T.M. (mother), mother of 13-year-old T. and 11-year-old M. (collectively the children), appeals from a post-permanency visitation order made at a Welfare and Institutions Code section 366.3 review hearing, allowing her to have written communication with her children “as approved by the children’s therapist.” Finding no error, we affirm the order.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORIES
The children were living with their mother and her boyfriend in Sacramento County when dependency proceedings were initiated in July 2005 after police, responding to a domestic violence call, noticed numerous bruises and scars on the children’s bodies. Both mother and her boyfriend were convicted of physically abusing the children, and mother was incarcerated at the Women’s Correctional Institute in Chowchilla. Dependency jurisdiction was taken over the children in Sacramento County in February 2006, after the juvenile court found true allegations that mother and her boyfriend had subjected the children to serious and severe physical abuse. Mother was denied reunification services and her visitation suspended after the juvenile court found visits would jeopardize the children’s safety. The children were placed with their father, A.R., and the case transferred to Stanislaus County, where father lived, so he could receive family maintenance services.
Father received family maintenance services from February 2006 to October 2007, when the Stanislaus County Community Service Agency (Agency) filed a section 387 petition seeking to have the children removed from him and placed in protective custody based on allegations that he failed to complete components of his case plan, failed to make the children’s dental and medical appointments, was homeless and tested positive for methamphetamine. The children were detained. In January 2008, the juvenile court found the petition’s allegations true. The court ordered reunification services for father. Father’s services were terminated, however, in November 2008, after the court found he made no progress in mitigating the causes that led to the children’s removal. The court established a permanent plan for both children of a permanent living arrangement with their foster parents with a specific goal of legal guardianship. The children were placed together in the same foster home, where they remained throughout the rest of these proceedings.
The October 2009 Review Hearing
A regularly scheduled section 366.3 review hearing was held on October 20, 2009, at which the court continued the children in their permanent plan. The children had not had physical contact with mother since their removal from her custody. The social worker noted in the report prepared for the hearing that mother had written some brief notes to the children, but they had not been given to the children on the advice of the children’s mental health clinician, who felt the letters would upset the children and disrupt their placement. At the review hearing, mother’s attorney asked that the letters be provided to the children as part of the case plan as long as they were appropriate in content, and current photos of the children be sent to mother. The supervising social worker explained that mother had called him several months before the hearing and said she wanted to write letters, which he told her would be fine, although he would have the children’s clinician read them. When the clinician read them, however, she felt they would be upsetting and cause some problems with stability in the placement.
The children’s attorney, noting there did not appear to be a finding that written contact with the children was detrimental and the children wanted to write mother and receive letters from her, did not think the clinician should decide on her own whether the letters should be passed on to the children, and therefore suggested the letters be passed on unless there was a specific problem, and if such a problem existed, it could be brought to the court’s attention. The court then ordered that there be no in person face-to-face contact with mother, but “contact is to be by way of quarterly letters reviewed by the children’s therapist prior to distribution[, ]” and “if there are any letters that have content that would be disturbing, then that would need to come before the court.” The court also ordered that mother be sent pictures of the children.
The March 2010 Review Hearing
In a March 2010 report prepared for the next review hearing, the social worker reported that the children had adjusted well to their current placement, the foster parents had bonded well with them, and the children appeared to be stable in this placement. The social worker noted that mother had not written any notes for the past several months and stated that both the clinician and T.’s support counselor advised that contacts with mother were detrimental to the stability of the placement. At the March 24, 2010 review hearing, mother’s attorney continued to object to the suspension of visits for mother. The court continued the permanent plan of placement with the foster parents with a specific goal of legal guardianship, as well as the suspension of mother’s right to visitation, leaving intact all previous orders not inconsistent with the current orders.
The September 2010 Review Hearing
The next review hearing was held on September 8, 2010. In a report prepared for that hearing, the social worker stated that mother had not written any notes for the past several months, and when communication is received, it is turned over to the clinician and T.’s support counselor to determine if these communications would be detrimental to the children’s stability. At the hearing, mother’s attorney informed the court that mother had written her in April and May regarding contact with the children, sending her letters for the children each time, which she forwarded to the social worker. Noting the social worker’s statement in the report that there had not been any letters for several months, the attorney wanted to ensure the letters, which the attorney thought were “very appropriate, ” were being given to the children. The court responded it understood that any written communication was to be given to the therapist, who would decide whether the notes should be given to the children, and “it would be the [c]ourt’s intention that it would be up to the therapist to determine dissemination of any information that comes from the parents. I’m not saying that it shouldn’t be provided, but I just want to make sure... that the children’s therapist feels it’s appropriate.”
Mother’s attorney responded that she wanted to see if the letters were actually being turned over to the children, as she had not received correspondence from the social worker advising her if the children had received the letters. The children’s attorney reported that T. said she had received at least one letter. The social worker stated the children had received letters, and he had given the most recent ones to the therapist about a month before the hearing, but he was not sure if they had been delivered. Mother’s attorney stated she did not know why the letters were taking so long, as she sent the letters to the social worker on May 27, but they were just being turned over. The court stated it understood that the letters would take awhile to get to the children, given the process they needed to go through.
Mother’s attorney then stated she “would just request the order for written communication to be allowed and that therapist discretion to allow letters is inappropriate, ” as it needed to be the court’s decision and “I would object to that.” The court responded that it did not want communication going directly to the children because it was concerned something inappropriate might be in the letters and therefore wanted to make sure the therapist approved the communication, but if the ongoing communication seemed appropriate, the order could be modified at the next court date.
The social worker stated he did not think the issue “is so much whether the communications are appropriate as rather how they affect the stability of the placement.” Mother’s attorney stated she would lodge the objection, ask for the order, and “ask that if there is some objection from the therapist, that I’d like some written documentation regarding what is the problem with this type of visitation order or letter of communication, given that this is the only type of contact my client can have at this point.” The court asked the social worker to get something from the therapist regarding “what the concern is as far as the communications vis-à-vis the children’s placement[, ]” so everyone could understand it better and explained it did not want any disruption in the children’s placement because they seemed to be doing better. The court asked mother’s attorney if that would suffice. Mother’s attorney responded she “would like something from the therapist to document the issues.” The court responded, “[t]hat way we all have a better understanding of how this communication could potentially disrupt placement.” Counsel for the children advised the court that T. had no problem with getting communication, but M. was “more on the fence about it.”
After the court announced its findings, approved the updated case plan, and scheduled the next review hearing, mother’s attorney asked the court whether it was going to amend the case plan on page three of five, which made no mention of visitation with mother, to include mother to be allowed to have written communication and current photographs, adding “I know the Court wants to include the discretion to the therapist, but I would like it to be in the case plan.” The court responded, “I will amend the case plan to provide the mother shall be provided current photographs and shall be allowed written communication as approved by the children’s therapist. [¶] And then I already made the order that the agency will provide the Court and all parties with a letter from each of the children’s therapists explaining the concerns as far as allowing the letters to be received directly by the children.” The minute order for each child states that “[p]revious orders entered that are not inconsistent with the orders herein shall remain in full force and effect” and that the Agency is “to provide current photos to mom” and she “shall be allowed written communication as approved by the children’s therapist.”
After mother filed her notice of appeal, the Agency filed the therapist’s letter, which has been included in the clerk’s transcript. Mother asserts that we should not consider the letter, as it was received after the court order under review, and therefore has no bearing on the propriety of the court’s order. We agree, and therefore do not consider the letter. (See In re Zeth S. (2003) 31 Cal.4th 396, 405 [noting that an appeal reviews the correctness of the judgment at the time of its rendition, based on the record before the trial court].)
DISCUSSION
In dependency proceedings, there are generally four phases: jurisdiction; disposition; reunification or family maintenance; and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) In cases that reach the permanency planning phase, the juvenile court must “conduct a hearing to select and implement an appropriate permanent plan from among those specified - including, in order of mandatory preference, adoption (after termination of parental rights), legal guardianship, and long-term foster care.” (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 884-885 (San Diego).)
If the court orders long-term foster care as the permanent plan, a status review hearing must be held every six months to determine whether the plan continues to be appropriate. (San Diego, supra, 13 Cal.4th at p. 885; § 366.3, subds. (d), (e).) The review hearing fulfills an “‘important purpose of dependency proceedings, ’ which is ‘to provide children with stable, permanent homes.’” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145.) At this stage, the focus has shifted away from efforts to maintain biological ties. (Id. at p. 1148; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Thus, “after a child has spent a substantial period in foster care and attempts at reunification have proved fruitless, the child’s interest in stability outweighs the parent’s interest in asserting the right to the custody and companionship of the child.” (In re Jasmon O. (1994) 8 Cal.4th 398, 419-420.)
Generally speaking, the juvenile court’s role is to “define the rights of the parties to visitation. The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child. In balancing these interests, the court in the exercise of its judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of visitation.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 (Jennifer G.) [visitation in the context of dispositional orders following removal from parental custody]; but see In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1166 , fn. 8 (Randalynne G.), superseded by statute on another ground as stated in In re S.B. (2004) 32 Cal.4th 1287, 1294-1295 [noting “some controversy as to whether the court’s visitation order must specify the frequency and length of visitation”].)
During the reunification period, visitation generally must be as frequent as possible, consistent with the dependent child’s well-being. (§ 362.1, subd. (a)(1)(A).) When a case reaches the permanency planning stage and the juvenile court selects a permanent plan of long-term foster care, it must order visitation with the parent unless the court finds by a preponderance of the evidence that visitation would be detrimental to the child. (§ 366.26, subd. (c)(4)(C); Cal. Rules of Court, rule 5.725(d)(7)(E); Randalynne G., supra, 97 Cal.App.4th at p. 1163.)
The juvenile court is accorded broad discretion in fashioning visitation orders. Absent a showing of a clear abuse of discretion, we will not interfere with the exercise of that discretion. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) Since reunification was no longer the goal in this case, it was appropriate for the juvenile court to fashion a visitation order balancing mother’s right to ongoing contact with her children and the children’s best interests. (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.)
Mother complains that the juvenile court abused its discretion when, at the September 2010 hearing, it ordered that mother would be allowed “written communication as approved by the children’s therapist.” Mother argues this order was an improper delegation of the juvenile court’s authority over visitation, as it allows the therapist to provide or withhold visitation as she sees fit. Mother asserts a more appropriate order would have been the one entered in October 2009, when the court ordered that the therapist review communication before distribution to the children and if the therapist was concerned about a particular piece of correspondence, the therapist could withhold the correspondence temporarily until a review could be scheduled with the court.
The determination as to whether visitation will occur is exclusively within the juvenile court’s authority. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009 (Christopher H.); Jennifer G., supra, 221 Cal.App.3d at pp. 756-757.) Thus, the juvenile court cannot delegate to any third party unlimited discretion to determine whether visitation is to occur. (In re M.R. (2005) 132 Cal.App.4th 269, 274 [improper delegation to legal guardian]; In re S.H. (2003) 111 Cal.App.4th 310, 319 [order improperly granted the children the right to refuse to visit]; In re Julie M. (1999) 69 Cal.App.4th 41, 46 [same]; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1477-1478 [improper delegation to children’s therapist].)
However, “[o]nly when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine.” (Christopher H., supra, 50 Cal.App.4th at p. 1009.) Thus, a visitation order validly may delegate to a therapist limited discretion to determine when court ordered visitation should begin. (In re Chantal S. (1996) 13 Cal.4th 196, 213.) Also, the juvenile court may delegate to a social agency the responsibility to manage details of the visitation such as the time, place and manner of the visits. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.)
The court’s September 2010 order gave mother the right to correspond with her children, with any correspondence to be “approved by the children’s therapist.” If read literally, the order would be an improper delegation to the therapist of the discretion to determine whether mother’s letters are given to the children, and therefore whether visitation will occur. We do not agree with mother, however, that the order should be read literally or that it results in any prejudicial error.
Mother agrees that an appropriate order is the one that was in existence prior to the September 2010 hearing, i.e. that the therapist would review all correspondence and bring to the court’s attention any correspondence she believed to be “disturbing.” At the September 2010 hearing, none of the parties asked the court to further limit visitation. Instead, mother’s attorney asked that visitation be expanded to remove entirely the requirement of therapist review and instead allow mother to correspond directly with her children. The court expressed concern about mother writing the children directly and ordered the Agency to obtain the therapist’s opinion regarding whether the children should receive direct correspondence. There was no discussion about removing the requirement that the therapist bring to the court’s attention any letter determined to be disturbing.
Since the court when making its orders at the September 2010 hearing left intact all prior consistent orders, and its September 2010 order that written communication would be allowed “as approved by the children’s therapist” is not inconsistent with the requirement in the October 2009 order that withheld correspondence be brought to the court’s attention, there is no error. As we read the record, the court’s current visitation order is that mother is allowed written communication as approved by the children’s therapist, with the therapist to bring to the court’s attention any correspondence that is disturbing, which mother acknowledges is an appropriate order.
DISPOSITION
The juvenile court’s September 8, 2010 visitation order is affirmed.
We Concur: Levy, Acting P.J., Kane, J.