Opinion
F082005
05-26-2021
In re L.L. et al., Persons Coming Under the Juvenile Court Law. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JENNA L., Defendant and Appellant.
Nicholas J. Mazanec, under appointment by the Court of Appeal, for Defendant and Appellant. Forrest W. Hansen, County Counsel, and Jennifer Trimble, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 20JP-00004A & B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Donald J. Proietti, Judge. Nicholas J. Mazanec, under appointment by the Court of Appeal, for Defendant and Appellant. Forrest W. Hansen, County Counsel, and Jennifer Trimble, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and De Santos, J.
-ooOoo-
The parties seek a stipulated reversal of the juvenile court's visitation order issued at a six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)), which granted Jenna L. (mother) monthly visitation with her son, S.L., at his discretion. The parties also seek to remand to the juvenile court to conduct a new hearing on visitation and immediate issuance of the remittitur. We accept the stipulation, reverse the visitation order, remand for a new visitation hearing, and order an immediate issuance of the remittitur.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2020, mother's sons, then 14-year-old L.L. and 11-year-old S.L., were placed in protective custody and a dependency petition was filed after the Child Welfare Services of Merced County Human Services Agency completed an investigation into referrals alleging mother was physically abusing them. Following a contested jurisdiction and disposition hearing, the juvenile court took jurisdiction and found the boys were persons falling within section 300, subdivisions (a), (b) and (c).
The boys have different fathers. S.L.'s father passed away at the outset of the dependency case.
With respect to S.L., the juvenile court removed him from mother's custody and ordered reunification services. The juvenile court ordered once monthly supervised visits between S.L. and mother and, at the request of S.L.'s attorney, stated it would include in the order that S.L. "is of sufficient age and ability to make the determination that if he wishes not to have contact he can opt out." The minute order of the hearing and the written visitation order issued after the hearing both stated S.L. "may opt out" of visits. The juvenile court set a six-month review hearing for August 2020.
With respect to L.L., the juvenile court removed him from mother's custody, placed him with his father under section 361.2, subdivision (b)(2), which allowed the father to assume custody but required a home visit within three months, gave L.L.'s father sole legal custody, and gave L.L. discretion to have visitation or contact with mother, including the ability to opt out. The juvenile set a hearing for August 2020 to determine whether the custody order needed to be adjusted and whether it would be safe to terminate jurisdiction. The juvenile court subsequently signed a custody order that granted mother twice monthly supervised visits with L.L., although the visits may be supervised or unsupervised at L.L.'s discretion.
Mother appealed from the juvenile court's findings and orders made at the jurisdiction and disposition hearing, arguing in part the visitation orders impermissibly delegated to her children the authority to determine whether any visits would occur. In February 2021, we issued an opinion in which we agreed S.L.'s visitation order essentially granted him total discretion to determine whether visits would occur, since by giving S.L. the ability to refuse a visit without ensuring a minimum number of visits actually took place, the juvenile court effectively gave S.L. the power to veto them. Accordingly, we concluded the juvenile court abused its discretion by giving S.L. the ability to "opt out" of visitation without ensuring that missed visits took place, reversed the visitation order as to S.L., and remanded for a hearing on visitation as to him. (In re L.L. (F081371, Feb. 22, 2021) [nonpub. opn.], pp. 11-12, 15.)
With respect to L.L., we held the visitation order was not improper because the written visitation order, which controlled over the juvenile court's oral pronouncements, did not give L.L. discretion to determine whether visits would occur.
While that appeal was pending, the previously scheduled review and custody hearings were held on September 3, 2020. As to L.L., the juvenile court awarded full custody and educational rights to L.L.'s father, ordered that mother would receive at least twice monthly visits which would be professionally supervised, and dismissed dependency. As for S.L., the juvenile court ordered continued reunification services for mother and issued a visitation order that provides, in pertinent part, the social worker will arrange supervised visitation between S.L. and mother "no less than one time monthly, as recommended and in the best interest and at the discretion of S[.L.]" The court set the 12-month review hearing for February 18, 2021.
DISCUSSION
The sole issue mother raises in her opening brief is that the juvenile court erred in giving S.L. discretion over whether visits with her would occur. After mother filed her opening brief, the parties filed a "Joint Application and Stipulation for Reversal and Remand of Action to the Juvenile Court," in which they stipulate to reversal of S.L.'s visitation order given our reversal of a nearly identical visitation order in the prior appeal.
A stipulated reversal under Code of Civil Procedure section 128, subdivision (a)(8) is permissible in a dependency case when the stipulated reversal will not adversely affect the rights of any nonparty or the public, the reasons for requesting reversal outweigh the erosion of public trust that may result from nullification of a judgment, and " 'the risk that availability of stipulated reversal will reduce the incentive for pretrial settlement.' " (In re Rashad H. (2000) 78 Cal.App.4th 376, 379-382.)
None of these factors preclude us from accepting the parties' stipulated reversal. The stipulated reversal only affects the rights of the parties, not the rights of any nonparty or the public. The reason for requesting reversal, namely, judicial error in granting S.L. discretion to determine whether visits occur, outweighs any conceivable erosion in public trust, as there is clear judicial error the resolution of which the parties have sought to expedite and return the case to the juvenile court to correct. As we previously held, an order that gives the child discretion to determine whether visits would occur, such as the one here, is an impermissible delegation of authority to the child. (In re S.H. (2003) 111 Cal.App.4th 310, 313 [holding visitation order that gave children discretion to refuse a visit was invalid because it impermissibly delegated to the children the authority to determine whether any visits would occur].) Finally, settlement is not an issue here. In that the parties have identified a specific error that would lead to reversal of the visitation order, we grant the motion.
DISPOSITION
The juvenile court's September 3, 2020 visitation order as to S.L. is reversed, and S.L.'s case is remanded to the juvenile court to hold a new hearing on visitation. The Clerk/Executive Officer is directed to issue a remittitur forthwith. (Cal. Rules of Court, rule 8.272(c)(1).)