Filed 6/14/21 In re Ma.F. CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re Ma.F., a Person Coming Under
the Juvenile Court Law.
__________________________________ A160938
ALAMEDA COUNTY SOCIAL
(Alameda County
SERVICES AGENCY,
Super. Ct. Nos.
Plaintiff and Respondent, JD03067501, JD03067801)
v.
C.H.,
Defendant and Appellant.
In this juvenile dependency proceeding, C.H. (Father) appeals from an
order granting him visitation with two of his minor children, Ma.F and J.F.,
“as frequently as possible consistent with the children’s well-being,” to be
implemented at the discretion of respondent social services agency.1 Father
1 Father has been referred to as C.H. or C.F. in the briefing and in prior
appeals (A157057, A157984, A159798). Ma.F. and J.F. were referred to as
Ma.P. and J.P. in those prior appeals.
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contends the court improperly delegated its judicial authority over visitation
to the agency. We will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
In January 2019, the Alameda County Social Services Agency (Agency)
filed dependency petitions pursuant to Welfare and Institutions Code section
300, subdivision (b)2 as to five minors—aged one to six years at the time—
alleging that Mother and Father had a history of domestic violence, Father
perpetrated domestic violence against the children (including possibly
breaking one of their legs), and Mother failed to protect the children. The
court ordered the children detained.
A. Appeal Numbers A157057 and A157984
At the jurisdictional and dispositional hearing on February 28, 2019,
the court adjudged the children (including Ma.F.) dependents of the court,
found true the allegations of the petition as amended, and ordered
reunification services for Mother and Father. The court also continued to
temporarily suspend visitation with Father pending the next review hearing.
Father appealed (A157057).
At ensuing review hearings on March 14, March 28, May 15, June 7,
and July 19, 2019, the court continued the order temporarily suspending
Father’s visitation based on reports from the minors’ therapists. Father
appealed from these orders as well. (A157984).
In consolidated appeal numbers A157057 and A157984, we affirmed
the orders on the ground that sufficient evidence supported a finding that
even therapeutic visits would threaten the children’s emotional wellbeing.
2 Except where otherwise indicated, all statutory references are to the
Welfare and Institutions Code.
2
B. Appeal Number A159798
At the 12-month permanency hearing (§ 366.21, subd. (f)), the Agency
recommended that Ma.F. and his brothers remain out of home, his sisters
have a two-week trial visit with Mother in anticipation of their return to her,
and Father’s reunification services be terminated. Father objected to the
termination of his reunification services, and the court set a contested
hearing.
Father’s counsel asked the juvenile court to grant the Agency discretion
to allow telephone contact between Father and Ma.F. The court denied
Father’s request, and Father appealed (A159798). We affirmed the order,
concluding that substantial evidence supported a finding that the children,
including Ma.F., would be at risk of detriment to their emotional well-being if
Father was granted telephone contact with Ma.F.
C. Current Appeal: 12-Month/18-Month Review Hearing
In an addendum report prepared for the contested 12-month review
hearing as to Ma.F. and J.F., the social worker reported Father’s progress.
According to Father’s therapist, it would be beneficial for Father to have
communication with the minors to incentivize additional progress, starting
with phone calls. Therapist Macias agreed that Father was ready to see the
minors and his further progress depended on some kind of father-child
contact, recommending a slow transition from letters to phone calls, to video
visits, and eventually to in-person visits. Therapist Ponthier opined that
presenting Father’s letters to Ma.F. and J.F. would be a good way to allow
Father back into their lives.
The contested 12-month review hearing as to Ma.F. and J.F. began on
August 18, 2020, and continued on August 28 and September 14, 2020. On
September 14, 2020, the court extended Mother’s reunification services to 24
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months. It terminated Father’s reunification services, finding there was no
substantial probability Ma.F. and J.F. would be returned to Father if services
were extended, and no exceptional circumstances existed for extending
services to 24 months. (See § 366.22, subds. (a)(3), (b).) Despite Father’s
compliance with his case plan and reasonable services from the Agency, the
minors were still scared of Father in a way that precluded reunification in
the next few months.
In addition, the court ordered that visits between the minors and
Mother and Father would take place “as frequently as possible consistent
with the children’s well-being.” The court lifted a prior suspension on letter-
writing, allowing the children’s therapists and the child welfare worker to
read one pre-screened letter from Father to the children per week, unless
they believed it would not be in the children’s best interests. The court
granted a request from the minors’ attorney for five days’ notice if contact
was to move beyond the letter-writing stage.
As directly relevant to this appeal, Father’s attorney then asked for “an
order for therapeutic visits to commence,” rather than leaving the
commencement of visits to the Agency’s discretion. The court denied the
request, indicating that the commencement of visits would be at the Agency’s
discretion and adding, “Let’s see how the letters go.” In addition, the court
ruled, family therapy was to remain in place but could “only be implemented
if the [children’s therapists and child welfare worker] are recommending it.”
This appeal followed.
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II. ARGUMENT
Father argues that, because the juvenile court did not find that visits
would be detrimental to Ma.F. and J.F., the court was required to order some
specific minimum amount of visitation and erred by delegating authority over
the visits to the minors’ therapist and the social worker. We disagree.
A. Law
Section 362.1, subdivision (a)(1)(A) requires the court to order
parent-child visits as frequently as possible consistent with the well-being of
the child.3 Even after reunification services are terminated, the court must
order parent-child contact in the absence of a detriment finding. (In re
Hunter S. (2006) 142 Cal.App.4th 1497, 1504; see § 366.21, subd. (h).)
It is the juvenile court that has “the power and responsibility to
regulate visitation between dependent children and their parents.” (In re
Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.) Nonetheless, a court may
delegate decisions to the Agency such as the time, place, and manner of the
visitation. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) The ultimate
supervision and control over this delegated discretion must remain with the
court. (In re Julie M. (1999) 69 Cal.App.4th 41, 51.) Therefore, the court
cannot delegate to a third-party “absolute discretion to determine whether
any visitation occurs.” (In re Moriah T., supra, 23 Cal.App.4th at
3
Under section 362.1, subdivision (a), an order placing a child in foster
care and ordering reunification services “shall provide as follows: [¶]
(1) [¶] (A) Subject to subparagraph (B), for visitation between the parent or
guardian and the child. Visitation shall be as frequent as possible, consistent
with the well-being of the child. [¶] (B) No visitation order shall jeopardize
the safety of the child.” Visitation may be denied (at least temporarily) if the
visits threaten the child’s physical or emotional well-being. (In re Matthew C.
(2017) 9 Cal.App.5th 1090, 1101–1104; In re T.M. (2016) 4 Cal.App.5th 1214,
1219–1220.)
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pp. 1374–1376, italics added; see, e.g., In re T.H. (2010) 190 Cal.App.4th
1119, 1123 [exit order allowing supervised visitation by father “to be
determined by the parents” improperly delegated to mother the discretion to
veto visitation]; In re Donnovan J., supra, 58 Cal.App.4th at pp. 1477–1478
[exit order precluding visitation without the permission of the children’s
therapists constituted an unlawful delegation of judicial authority]; In re
Hunter S., supra, 142 Cal.App.4th at p. 1505 [order granting mother
visitation “ ‘as can be arranged’ ” was improper because it effectively gave the
child “virtually complete discretion to veto visitation and indeed all contact,
with his mother, a discretion he exercised without any oversight or direction
by the court”].)
B. Analysis
Here, the juvenile court ordered that visits take place “as frequently as
possible consistent with the children’s well-being.” When Father’s counsel
requested “an actual order for therapeutic visits to commence,” meaning an
order “for the therapists of the children and the family therapist to make a
decision as to whether [visits] should go forward in a paced, slow manner”
rather than visits being up to “Agency discretion,” the court denied the
request and added that discretion “will still stand.” In other words, the court
ordered visitation, but allowed the Agency to ascertain, with input from the
therapists, when visits would be consistent with the children’s well-being.
The court therefore did not delegate absolute authority over visitation,
but only discretion as to its timing, with an intent to maintain judicial
supervision over the visitation issue. This was a proper exercise of the court’s
authority. (In re Moriah T., supra, 23 Cal.App.4th at pp. 1374–1375 [order
that father visit regularly and that visitation be “consistent with the
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well-being of the minor[s], and at the discretion of Child Protective Services
(CPS) as to the time, place, and manner” was a permissible delegation to CPS
of the responsibility of managing the ministerial details of visitation, subject
to the juvenile court’s supervision and control over its exercise].)4
Instructive in this regard is our Supreme Court’s opinion in In re
Chantal S. (1996) 13 Cal.4th 196. There, the juvenile court ordered that a
therapist should “ ‘facilitate’ ” visitation with the minor once Father had
made “ ‘satisfactory progress.’ ” The Supreme Court concluded that the
portion of the order allowing the therapist to facilitate visitation was
permissible because it merely mandated the therapist’s participation and did
not grant the therapist any discretion. The portion of the order that allowed
the therapist to determine when satisfactory progress had been made was
also permissible, because the juvenile court must have concluded that visits
were not appropriate until father had made satisfactory progress. (Id. at
pp. 213–215.) Similarly here, the juvenile court must have determined that
visits would not be appropriate unless—as the law dictates—they would be
consistent with the children’s welfare; it was not improper for the court to
allow the Agency, whether alone or in conjunction with the minors’
therapists, to determine when that threshold was met, subject to review by
the juvenile court.
4 The parties infer from the reporter’s transcript that the judge granted
discretion to the Agency and the therapists to determine when visits should
commence. It appears instead that Father’s counsel was seeking an order
requiring visits to begin whenever the therapists decided it could go forward,
as opposed to visits being up to “Agency discretion,” and the court’s denial of
that request amounted to a delegation of discretion to the Agency alone in
determining when visits would be consistent with the children’s welfare. The
court’s later statement that “it can only be implemented if the professionals
are recommending it” pertained to implementation of family therapy, not
visits. Under either interpretation, the order was not erroneous.
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Moreover, the juvenile court in this case granted discretion to the
Agency—as an arm of the juvenile court—and not exclusively to private
parties. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1233–1237
[upholding order that visitation “will be at [the agency’s] discretion and the
children’s discretion,” because the agency acts as an arm of the juvenile court;
the rapidly changing and complex family situations in juvenile dependency
matters require delegation to the agency of some “quasi-adjudicatory
powers”].) The cases on which Father relies disapproved of judicial
delegation of authority exclusively to third parties, who do not have the same
relationship with or obligation to the juvenile court. Father fails to establish
error.
Finally, even if the court’s order had been erroneous, Father does not
establish prejudice. He does not point to anywhere in the record indicating
that, as a result of the September 14, 2020 order, he was denied visitation
because of the Agency’s and therapists’ determination that visits would be
inconsistent with the minors’ best interests, without the opportunity for
review by the juvenile court.
III. DISPOSITION
The order is affirmed.
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NEEDHAM, J.
We concur.
SIMONS, Acting P.J.
RODRIGUEZ, J. *
In re Ma F./ A160938
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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