Filed 7/29/21 In re D.W. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.W. et al., Persons Coming
Under the Juvenile Court Law.
D078740
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. Nos. J519399A-B)
Plaintiff and Respondent,
v.
B.G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Rohanee Zapanta, Judge. Dismissed in part, reversed in part, and remanded
with instructions.
Christine E. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent.
B.G. (Mother) appeals the juvenile court’s order issued at the contested
hearing on March 11, 2021 under Welfare and Institutions Code1 section
366.26, establishing a legal guardianship for her son, T.L. Mother’s other
son, D.W., was also before the juvenile court on March 11, 2021, for a
contested family maintenance review hearing under section 364, and the
juvenile court ordered that D.W. remain in the care of T.W. (Father).2 In her
opening brief, Mother’s sole challenge is to the juvenile court’s visitation
order issued pursuant to T.L.’s legal guardianship. She contends that the
juvenile court improperly authorized T.L.’s legal guardian to determine the
frequency and duration of Mother’s visitation with T.L., and requests a
remand with instructions that the juvenile court issue an order specifying
both the frequency and duration of Mother’s visits.
In a letter brief, the San Diego County Health and Human Services
Agency (the Agency) concedes that the juvenile court erred in leaving it to the
legal guardian to determine the frequency and duration of Mother’s visitation
with T.L. Mother and the Agency have filed a joint stipulation for the
immediate issuance of a remittitur as to both children. (Cal. Rules of Court,
rule 8.272(c)(1).) The parties acknowledge that Mother has not raised any
challenge to the juvenile court’s order as to D.W., and they anticipate that
Mother’s appeal as to D.W. will be dismissed. As to T.L., the parties set forth
their agreement to a limited remand with instructions to the juvenile court to
specify the frequency and duration of Mother’s visitation with T.L. under the
legal guardianship.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 Father is not a party to this appeal.
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We accept the Agency’s letter brief in lieu of a formal respondent’s brief
and consider the matter to be fully briefed. (Cal. Rules of Court, rule
8.200(a)(2).) For the reasons stated post, we accept the parties’ stipulation,
dismiss the appeal as to the order issued in D.W.’s case, reverse the visitation
order in T.L.’s case, and remand with instructions that the juvenile court
specify the frequency and duration of T.L.’s visitation.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, T.L. and D.W. were declared dependents of the juvenile court
due to domestic violence in the home. Both children were removed from
Mother’s custody and reunification services were ordered for Mother. During
the reunification period, Mother’s visitation with the children was
inconsistent, she was not compliant with her case plan requirements, she did
not participate in her court ordered services, and she had several arrests. In
2017, the juvenile court terminated Mother’s reunification services and
formally placed T.L. with the caregiver who would eventually become his
legal guardian. No issues were reported during T.L.’s placement. Although
the caregiver was unwilling to adopt T.L., she was willing to provide T.L.
with the permanency of a legal guardianship. Meanwhile, D.W. was placed
in Father’s care under a plan of family maintenance.
At the contested section 366.26 hearing on March 11, 2021, the Agency
recommended that the juvenile court appoint T.L.’s current caregiver as his
legal guardian and terminate dependency jurisdiction. The parties, including
Mother, submitted on this recommendation. Mother’s counsel asserted that
although Mother would like to have both children in her care, she did not
want to disrupt T.L.’s placement with the legal guardian. Regarding
visitation, Mother’s counsel stated that the presumption was for the legal
guardian to expand Mother’s visitation to unsupervised visits once the
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juvenile court terminated jurisdiction over T.L. and closed his case.3 T.L.’s
counsel conveyed to the juvenile court that although T.L. wanted to be placed
with Mother, he understood why the legal guardianship was the best
placement for him.
After hearing the parties’ statements and reviewing the Agency’s
reports, the juvenile court found that T.L. was adoptable, but that an
exception existed under section 366.26, subdivision (c)(1) that made
termination of parental rights detrimental to T.L. The juvenile court ordered
a permanent plan of legal guardianship for T.L. and appointed the caregiver
as his legal guardian. Regarding visitation, the juvenile court ordered
reasonable, supervised visits for Mother with T.L., with the legal guardian to
determine the time, place, frequency, and duration of the visits. The court
then terminated jurisdiction over T.L.
At the same hearing, the juvenile court ordered D.W. to remain in
Father’s care under a family maintenance plan.
Mother timely appealed.
DISCUSSION
The parties’ stipulation sets forth their agreement to the following: 1)
dismissal of Mother’s appeal as to the order in D.W.’s case; and 2) reversal of
the visitation order in T.L.’s case and remand with instructions that the
juvenile court specify the frequency and duration of Mother’s visitation with
3 Contrary to the Agency’s suggestion, Mother’s counsel did not
affirmatively request that all decisions over T.L.’s visitation be entrusted to
the legal guardian. Further, even if Mother forfeited her ability to challenge
the visitation order by failing to raise it in the juvenile court, the Agency
submits that this court should exercise its discretion and consider Mother’s
challenge to the visitation order.
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T.L. under the legal guardianship. Based on our independent review of the
record, we accept the stipulation.
1. Mother’s Appeal of the Order in D.W.’s Case Should Be Dismissed
Mother’s notice of appeal stated that she was appealing, in part, the
juvenile court’s order entered on March 11, 2021 regarding D.W. However, in
her opening brief, Mother does not raise any challenge to the order as to D.W.
Mother acknowledges this in the stipulation, and the parties state their
expectation that Mother’s appeal as to D.W. will be dismissed. Accordingly,
we accept the stipulation as to D.W. and dismiss this portion of the appeal.
(In re Sade C. (1996) 13 Cal.4th 952, 994 [appellate court may deem an
appeal abandoned and dismiss it based on appellant’s failure raise a claim of
reversible error].)
2. The Juvenile Court’s Visitation Order as to T.L. Improperly Left It to
the Legal Guardian to Determine the Frequency and Duration of Mother’s
Visitation with T.L.
Although the juvenile court may vest a child’s legal guardian with the
discretion to decide the time, place, and manner of visitation between a child
and a parent pursuant to the legal guardianship, the juvenile court must, at
a minimum, specify the frequency and duration of the visits. (In re M.R.
(2005) 132 Cal.App.4th 269, 274 (M.R.).) The juvenile court in this case,
however, expressly delegated the determination of the frequency and
duration of Mother’s visitation with T.L. to T.L.’s legal guardian: “I do order
the parents have reasonable supervised visitation with the guardian[ ] to
determine the time, place, frequency and duration of such visits.” This order
effectively allows the legal guardian to decide whether visitation will occur,
and constitutes an abuse of discretion by the juvenile court. (See In re Ethan
J. (2015) 236 Cal.App.4th 654, 660–661; In re Rebecca S. (2010) 181
Cal.App.4th 1310, 1314; M.R. at p. 274.) The parties stipulate to a reversal
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on this basis and request a remand to the juvenile court to craft an order
specifying the frequency and duration of Mother’s visits with T.L.
A stipulated reversal under Code of Civil Procedure section 128,
subdivision (a)(8) is permissible in a juvenile dependency case when the
stipulated reversal will not adversely affect the rights of any nonparty or the
public, and the reasons for requesting reversal outweigh the erosion of public
trust that may result from nullification of a judgment. (In re Rashad H.
(2000) 78 Cal.App.4th 376, 379–382 (Rashad H.).) The court also considers
whether the stipulated reversal will reduce the incentive for pretrial
settlement. (Ibid.)
Applying those factors, we accept the parties’ stipulation for reversal.
First, there is no reasonable possibility that the interests of nonparties to the
stipulation or the public will be adversely affected by reversal of the
judgment in this case. In fact, T.L.’s best interests will be advanced by
reversal of the visitation order. In 2005, the Legislature amended section
366.26, subdivision (c)(4)(C) to instruct the juvenile courts to make visitation
orders when a child is ordered into a permanent plan of legal guardianship,
absent a finding that visitation would be detrimental. (See M.R., supra, 132
Cal.App.4th at p. 274 [juvenile court is required to make a visitation order
under § 366.26, subd. (c)(4)(C) unless it finds that visitation is not in the
child’s best interests].) Because there is no detriment finding regarding
visitation in this case, it is presumed that visitation between Mother and T.L.
is in T.L’s best interests. A reversal of the juvenile court’s order will permit
that court to set minimum parameters for visitation to ensure that visitation
will occur.
Further, the parties agree, and we concur, that the juvenile court’s
visitation order erroneously delegated to T.L.’s legal guardian the authority
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to decide the frequency and duration of visitation. When such reversible
error is presented on appeal, a stipulated reversal advances the public trust
by assuring the public that the courts and parties will promptly and
reasonably act to address situations in which reversal is necessary. (See
Rashad H., supra, 78 Cal.App.4th at pp. 381–382.) Finally, pretrial
settlement is not an issue in this case. For these reasons, we accept the
parties’ stipulation for reversal of the visitation order as to T.L.
DISPOSITION
Mother’s appeal of the March 11, 2021 order in D.W.’s case is
dismissed. The March 11, 2021 visitation order in T.L’s case is reversed and
remanded to the juvenile court with instructions to hold a new hearing on the
issue of Mother’s visitation. On remand, the juvenile court is instructed to
make a new visitation order that specifies the frequency and duration of the
visits between Mother and T.L. The clerk is directed to issue a remittitur
forthwith. (Cal. Rules of Court, rule 8.272(c)(1).)
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
DO, J.
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