Opinion
B325539
08-29-2023
In re Amari L., a Person Coming Under the Juvenile Court Law. v. MARIO L., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Nos. 21CCJP05056, 21CCJP05056A, Hernan D. Vera, Judge. Reversed and remanded in part, affirmed in part.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
COLLINS, J.
Father Mario L. appeals from a juvenile court exit order terminating dependency jurisdiction over his son A.L. and awarding sole legal and physical custody of A.L. to mother D.S., with monitored visitation for father. Father contends the order improperly delegates to mother complete discretion over whether visitation will occur because it does not specify a frequency or duration for his visitation. Counsel for A.L., the only respondent here, filed a "letter of non-objection to father's appeal." We agree with father that the exit order improperly vests mother with complete discretion over father's visitation. We accordingly reverse the portion of the order governing father's visitation and remand for the juvenile court to consider and specify the frequency and duration of father's visits.
The Los Angeles Department of Children and Family Services (DCFS) filed a letter brief indicating that it requested the juvenile court order one annual monitored visit between father and A.L., and the juvenile court "declined to make such order." DCFS accordingly "submits the matter to this Court based on the record on appeal."
BACKGROUND
The parties are familiar with the factual and procedural history of the case, much of which is of limited relevance to this appeal. We accordingly summarize only the case history most pertinent to the issue presented.
The juvenile court took jurisdiction over toddler A.L. under Welfare and Institutions Code section 300, subdivision (a) due to parents' domestic violence and father's fatal shooting of a man in A.L.'s presence. Father was arrested on charges of burglary and murder in connection with the shooting and remained in custody for the duration of the dependency proceedings. After declaring A.L. a dependent, the juvenile court removed him from father, placed him with mother, and ordered family maintenance services for mother. Father's appeal from the disposition order, which denied him enhancement services, was dismissed pursuant to In re Phoenix H. (2009) 47 Cal.4th 835.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In advance of the first section 364 review hearing, DCFS filed a status review report recommending that the court terminate jurisdiction, grant mother sole physical and legal custody of A.L., and grant father monitored visitation.
The report indicated that father had limited contact with A.L. during the review period because father's correctional facility did not allow video visits and mother believed phone visits were not "age appropriate" for A.L., who was born in December 2020.
At the section 364 hearing, counsel for DCFS recommended that the court set the frequency of father's visits at one per year. Father's counsel indicated that she did "not have any direction from" father and requested visitation "if and once my client is released." Despite expressing uncertainty that "the one time per year is necessary as he is incarcerated," father's counsel objected to DCFS's request for one visit per year. Counsel for mother and A.L. agreed that jurisdiction should be terminated and did not comment on the visitation issue.
The court terminated jurisdiction over A.L. It stayed the order terminating jurisdiction for receipt of a family law order awarding mother sole legal and physical custody of A.L., "with monitored visits for father." The court stated, "I'll leave the frequency of the visits to the parents." Mother asked the court who would monitor the visits, and the court responded that mother and father "can agree on who that would be," possibly "a family member or someone else that you believe would be appropriate." The court declined DCFS's request to order father to pay for a professional monitor, stating, "I'm not going to micromanage this." It added, "I'm not going to put in once a year, professional monitor. It's whoever they agree with. I've added the mother not to monitor, but let's - we're going to leave it at that."
Consistent with the court's oral remarks, the minute order issued after the section 364 hearing states in relevant part, "Mother is awarded sole legal and sole physical custody of the minor, with monitored visitation for father." The exit order issued September 30, 2022 grants father monitored visitation and states, "Monitored visits to be worked out between the parents; monitor to be agreed upon by the parents or professional monitor; mother not to monitor father's visits." No boxes are checked on the portion of the order concerning the frequency of visitation. After signing the exit order, the juvenile court terminated jurisdiction. Father timely appealed.
DISCUSSION
The sole issue in this appeal is whether the juvenile court improperly delegated to mother the power to grant or deny father visitation with A.L. We reach the merits despite father's acknowledged failure to clearly object below because counsel for DCFS brought the issue to the juvenile court's attention and further objection likely would have been futile in light of the court's refusal to "micromanage" visitation. (See In re S.M. (2004) 118 Cal.App.4th 1108, 1121, fn. 9.)
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation. (§§ 364, subd. (c), 362.4; [citation].) Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court." (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123 (In re T.H.).) In making an exit order, a juvenile court must consider the totality of the circumstances to craft an order that is in the child's best interests. (In re J.T. (2014) 228 Cal.App.4th 953, 963-965.) We review exit orders and visitation orders under the abuse of discretion standard. (See In re M.R. (2017) 7 Cal.App.5th 886, 902; In re R.R. (2010) 187 Cal.App.4th 1264, 1284.) A court abuses its discretion if its decision rests on an error of law. (See In re Charlisse C. (2008) 45 Cal.4th 145, 159; In re T.H., supra, 190 Cal.App.4th at pp. 1123-1124.)
"The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties." (In re T.H., supra, 190 Cal.App.4th at p. 1123.) The court must retain ultimate control over whether visitation will occur. (Ibid.; In re Korbin Z. (2016) 3 Cal.App.5th 511, 516-517.) The court may delegate to a third party only the responsibility for managing the details of visits, such as their time, place, or manner. (In re T.H., supra, 190 Cal.App.4th at p. 1123.) Whether the visits occur at all is a matter reserved for the court. (Ibid.; In re Korbin Z., supra, 3 Cal.App.5th at p. 517.) "This rule of nondelegation applies to exit orders issued when dependency jurisdiction is terminated." (In re T.H., supra, 190 Cal.App.4th at p. 1123.)
Here, the juvenile court did not specify how frequently father was entitled to visit A.L., or how long each of his visits could last. Instead, it ordered that the visits were "to be worked out between the parents." As in In re T.H., this order "effectively delegates to mother the power to determine whether visitation will occur at all." (In re T.H., supra, 190 Cal.App.4th at p. 1123; see also In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 ["leaving the frequency and duration of visits within the legal guardian's discretion allows the guardian to decide whether visitation actually will occur"].) That power appears particularly strong here, where mother has sole physical and legal custody of A.L., already has disallowed phone visits between A.L. and father, and father's release date remains uncertain. "Father's ability to seek a modification or enforcement of the order in family court does not solve the problem of this unauthorized delegation." (In re T.H., supra, 190 Cal.App.4th at p. 1123.)
By ordering monitored visitation for father, the court implicitly decided that such visitation was in A.L.'s best interests. It was therefore obligated to advance those interests by ensuring that at least some such visitation, at a minimum level determined by the court, will in fact occur. (In re Korbin Z., supra, 3 Cal.App.5th at p. 519.) The court abused its discretion by declining to do so.
The matter must be remanded so that the juvenile court can exercise its discretion in formulating an order that establishes, at the very least, the frequency and duration of visitation to which father is entitled. Because the family's circumstances may have changed since the dependency was terminated, the court should consider any relevant evidence proffered by the parties regarding the terms of the visitation order. (In re T.H., supra, 190 Cal.App.4th at p. 1124.)
DISPOSITION
The portion of the September 30, 2022 exit order regarding father's visitation is reversed. The matter is remanded for the juvenile court to reconsider whether to order visitation, and if so, the terms of such visitation. The order is affirmed in all other respects.
We concur: CURREY, P.J., ZUKIN, J.