Filed 1/19/22 In re Carlos R. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re CARLOS R. et al., Persons B311026
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. CK90485)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CARLOS R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Philip L. Soto, Judge. Dismissed in part as moot;
reversed in part and remanded.
Annie Greenleaf, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Carlos R. (Father) appeals from the visitation order
granting him monthly unmonitored visits with 15-year-old Carlos
Manuel (Manuel) and monthly monitored visits with 12-year-old
Erika and nine-year-old Carlos Javier (Javier). Father contends
the juvenile court abused its discretion by failing to specify the
duration of the monthly visits, thereby allowing the legal
guardians to control whether visitation occurs between Father
and the children. While Father’s appeal was pending, the
juvenile court returned Manuel to Father’s physical custody. We
dismiss Father’s appeal as to Manuel as moot. We agree with
Father the juvenile court abused its discretion in failing to set a
minimum duration for his visits with Erika and Javier, and we
reverse the visitation order.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Petition
In November 2011 the Los Angeles County Department of
Children and Family Services (Department) filed a petition under
Welfare & Institutions Code section 300, subdivision (b)(1),1 on
behalf of then-six-year-old Manuel, then-three-year-old Erika,
1 All further undesignated statutory references are to the
Welfare & Institutions Code.
2
and then-three-month-old Javier. On November 29 the juvenile
court sustained the allegations Maria M. (Mother) used
methamphetamine; on October 19, 2011 she was under the
influence of methamphetamine while caring for the children; she
was subsequently convicted of child endangerment; and her drug
use placed the children at risk of physical harm.2
On January 13, 2012 the juvenile court sustained the
allegations Father had a history of alcohol and
methamphetamine use; he was convicted of possession of a
controlled substance and driving while under the influence of
alcohol; and his use of drugs and alcohol endangered the
children’s physical and emotional health and safety. The court
removed the children from Father’s physical custody and ordered
him to participate in parenting classes, individual counseling,
conjoint counseling with the children at the discretion of the
therapist, alcohol and drug counseling, and weekly random
alcohol and drug testing. On July 26, 2013 the court returned the
children to Father’s physical custody and ordered random weekly
drug testing for Father, unannounced home visits twice a month,
and Father to obtain Department-approved childcare.
B. The Subsequent Dependency Petition
On December 31, 2013 the Department filed a subsequent
petition under section 342 on behalf of the three children,
asserting new allegations under section 300, subdivisions (b)(1)
2 It appears the children were removed from Mother’s
physical custody, although the appellate record does not state
when the children were removed. Mother is not a party to this
appeal.
3
and (j). The petition alleged Father failed to keep Manuel’s
appointments with Manuel’s psychiatrist and did not provide
Manuel with prescribed medication for Attention Deficit
Hyperactivity Disorder (ADHD) for over two months. Further,
Father failed to keep Erika’s appointments with her psychiatrist
and did not regularly provide Erika with prescribed medication
for her mood disorder (oppositional defiant disorder), ADHD, and
visual and auditory hallucinations. The petition also alleged
Father failed to supervise then-two-year-old Javier, who was
found alone in the street. The petition alleged Father’s actions
endangered the children and placed them at risk of physical
harm.
At the February 5, 2014 jurisdiction hearing, the juvenile
court sustained all the allegations. At the subsequent disposition
hearing, the court removed the children from Father and granted
Father six months of family reunification services. The court
ordered Father to comply with medical appointments for the
children, to provide them with prescribed medication, to attend
parenting classes for special needs children, and to participate in
individual counseling to address case issues, including child
safety.
At the October 31, 2014 contested permanency review
hearing (§ 366.22), the juvenile court terminated Father’s family
reunification services after finding Father was only in partial
compliance with his case plan. The court granted Father
unmonitored visits with the children provided the visits did not
occur at his workplace, with the Department having discretion to
allow Father overnight visits once Father completed his classes
for parenting special needs children.
4
At the August 6, 2015 selection and implementation
hearing (§ 366.26) for Erika and Javier, the juvenile court
appointed their caregivers, Maria U. and Luis O., as the
children’s legal guardians. At the October 21, 2015 selection and
implementation hearing for Manuel, the court appointed his
caregivers, Susana and Rosalio N., as his legal guardians. The
court retained jurisdiction as to all three children.
On April 20, 2016 the juvenile court granted Father
unmonitored overnight visits with the children. But on
September 22 the Department filed a petition under section 388
requesting Father’s visits become monitored because Father
tested positive for methamphetamine. Father admitted he
became extremely intoxicated and used methamphetamine on his
birthday. On October 19 the court granted the Department’s
section 388 petition and ordered monitored visitation, but with
Father’s visits to “revert back to unmonitored visits once he has
tested clean 4 consecutive times.”
On November 25, 2016 Father resumed unmonitored visits
with the children after testing negative four times. However, on
December 22 Father again tested positive for methamphetamine.
In 2017 the legal guardians exercised their discretion that
Father’s visits again be monitored because of his suspected drug
use, his leaving one of the younger children with a person the
legal guardians did not know, and Manuel being injured during
an unmonitored visit with Father.
Father tested positive for cannabinoids two times in
November and once in December 2017, and he tested positive for
methamphetamine on January 3, 2018. Father also missed four
drug tests between November 2017 and February 2018. From
October 2017 to April 2018 Father attended three out of 10
5
scheduled visits with Erika and Javier.3 From July to September
2018 Father attended four out of nine visits with Erika and
Javier.
After three community monitoring facilities dropped Father
for missing consecutive visits with Erika and Javier, in January
2019 the Department scheduled Father’s visits with Erika and
Javier for every other week at the Department’s office. But
Father only visited Erika and Javier once a month. In 2020
Father had one monitored visit with Erika and Javier, on
January 7. Father did not contact the social worker again until
November 2020, when his wife called to schedule a visit for
January 2021. Father did not call Erika or Javier for four
months, from approximately July to October 2020. Because of
the COVID-19 pandemic, Father’s January 2021 visit with Erika
and Javier was rescheduled for February.
C. The Post-permanency Review Hearing
At the February 24, 2021 post-permanency review hearing
(§ 366.3), the parties addressed Father’s visitation with Erika
and Javier.4 Father’s attorney stated that Father “has been
prevented on an ongoing basis from visiting with his children due
3 Because we dismiss Father’s appeal as to Manuel as moot,
we only discuss Father’s visitation with Erika and Javier.
4 The Department reported in a last minute information for
the court that the legal guardians for Erika and Javier did not
feel comfortable with Father having unmonitored visitation
because of inappropriate comments about the dependency case
that Father’s wife made to the children during a monitored call a
week before the hearing.
6
to the legal guardian having the discretion as to whether he visits
at all. And they’ve exercised their discretion to effectively not
permit those visits to occur.” Father’s attorney requested the
juvenile court order four hours of unmonitored visitation each
week “so he can have an ongoing relationship with his children.”
Minors’ counsel responded that Erika and Javier did not feel
comfortable having unmonitored visitation with Father. The
Department urged the court to continue the order for monitored
visitation. The court responded, “[T]he guardians don’t have a
right to keep [F]ather from visiting on a monitored basis for
Erika and [Javier]. That’s clearly set out in the guardianship
papers. Father has monitored visits once a month with all of the
children right now.”
After further argument, the juvenile court ordered, “As for
Erika and [Javier], their [legal guardian] documents will remain
as previously entered into the record. Father, one monitored
visit[] per month at a minimum. Additional monitored visits if
the children and the father wish to do so. Guardians to make
arrangements for those additional visits.” The court then
terminated jurisdiction, finding “no further need for judicial
oversight and intervention.”
Father timely appealed the final visitation order. During
the pendency of Father’s appeal, the juvenile court ordered
Manuel returned to Father’s physical custody at the October 19,
2021 selection and implementation hearing (§ 366.26).5
5 On November 2, 2021 we granted the Department’s request
for judicial notice of the October 19, 2021 minute order. (Evid.
Code, §§ 452, subd. (d), 459, subd. (a).)
7
DISCUSSION
A. Father’s Appeal of the Visitation Order for Manuel Is Moot
A dependency appeal “‘“becomes moot when, through no
fault of the respondent, the occurrence of an event renders it
impossible for the appellate court to grant the appellant effective
relief.”’” (In re J.P. (2017) 14 Cal.App.5th 616, 623; accord, In re
N.S. (2016) 245 Cal.App.4th 53, 61 [mother’s appeal was moot
where juvenile court awarded her custody of minor and dismissed
dependency proceedings]; In re Albert G. (2003) 113 Cal.App.4th
132, 134 [maternal aunt’s appeal of child’s removal from her care
and denial of her section 388 petition were rendered moot by
child’s adoption].)
Father challenges the juvenile court’s visitation order
granting him unmonitored visitation once per month with
Manuel. But at the October 19, 2021 selection and
implementation hearing, the juvenile court returned Manuel to
Father’s physical custody and ordered the Department to provide
Father with family maintenance services and to make
unannounced visits. We agree with the Department that
Father’s appeal is therefore moot because even if we reversed the
visitation order, we would be unable to grant Father any effective
relief. Father does not present any arguments to the contrary in
his reply brief.
B. The Juvenile Court Abused Its Discretion in Failing To
Specify the Duration of Father’s Visits in the Visitation
Order
“When, as here, the juvenile court orders a legal
guardianship at the permanency planning hearing, it must ‘make
8
an order for visitation with the parents . . . unless the court finds
by a preponderance of the evidence that the visitation would be
detrimental to the physical or emotional well-being of the child.’”
(§ 366.26, subd. (c)(4)(C).)” (In re Ethan J. (2015)
236 Cal.App.4th 654, 661; accord, In re Rebecca S. (2010)
181 Cal.App.4th 1310, 1313; In re M.R. (2005) 132 Cal.App.4th
269, 274 [“the trial court was required to make a visitation order
unless it found that visitation was not in the children’s best
interest”].) “[T]he juvenile court cannot delegate the decision
whether visitation will occur to any third party, including the
child, the social services agency, or the guardian.” (In re Korbin
Z. (2016) 3 Cal.App.5th 511, 516; accord, In re T.H. (2010) 190
Cal.App.4th 1119, 1123 [“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.”].) “The time, place, and manner of
visitation may be left to the legal guardians, but the guardians
shall not have discretion to decide whether visitation actually
occurs.” (In re Grace C. (2010) 190 Cal.App.4th 1470, 1478;
accord, Rebecca S., at p. 1314 [“leaving the frequency and
duration of visits within the legal guardian’s discretion allows the
guardian to decide whether visitation actually will occur”]; see In
re S.H. (2003) 111 Cal.App.4th 310, 317 [“the power to decide
whether any visitation occurs belongs to the court alone”].) “‘We
review applicable legal principles de novo, but apply a deferential
standard of review to the court’s exercise of discretion and
resolution of disputed facts.’” (Rebecca S., at p. 1314.)
Father contends the juvenile court abused its discretion
because it left the duration of his visits with Erika and Javier to
the legal guardians’ discretion, and the legal guardians could
9
reduce Father’s visitation time to effectively prevent any
visitation. The Department in response relies on In re Grace C.,
supra, 190 Cal.App.4th at pages 1478 to 1479, in which the Court
of Appeal upheld a visitation order that allowed the legal
guardians to reduce the mother’s visitation upon a written
recommendation by the children’s therapist that visitation be
adjusted, with prior notice to the mother. In finding no abuse of
discretion, the Court of Appeal emphasized that the court’s
visitation order provided “in great detail” the frequency and
duration of the visits and it was undisputed that the “visits were
going well and were expected to continue indefinitely.” (Ibid.)
The court concluded that under these circumstances, the juvenile
court “properly considered the need for flexibility and allowed for
adjustments if necessary after the termination of jurisdiction.”
(Id. at p. 1479.) Further, “[i]f visits are reduced and mother
contends that the legal guardians lack good reasons for the
reduction, mother may petition the juvenile court for relief.”
(Ibid.)
Father acknowledges that if the legal guardians
dramatically curtail his visitation, he can petition for relief under
section 388,6 but he contends he would have difficulty showing a
change in circumstances given the juvenile court’s failure to set a
6 As the court explained in In re Grace C., “[A]lthough the
court would no longer hold ongoing review hearings after it
[terminated] dependency jurisdiction, the court retained
jurisdiction over the minors as guardianship wards, and [the
parent] was free to petition the court for a change in order if a
problem with visitation developed.” (In re Grace C., supra,
190 Cal.App.4th at p. 1476, fn. 5, citing §§ 366.3, subd. (a), 388.)
10
baseline for the duration of his visits. (See § 388, subd. (a)(1)
[“Any parent or other person having an interest in a child who is
a dependent child of the juvenile court . . . may, upon grounds of
change of circumstance or new evidence, petition the court in the
same action . . . in which a guardianship was ordered pursuant to
Section 360 for a hearing to change, modify, or set aside any
order of court previously made . . . .”].)
We agree. Although the legal guardians could not,
consistent with the visitation order, reduce Father’s visits to five
or even 15 minutes, as suggested in Father’s opening brief,
Father would have limited recourse if the legal guardians were to
limit his visitation to, for example, an hour, which would be
minimal visitation in light of Father’s once-monthly visits. And
the court failed to explain why it impliedly rejected Father’s
request for four-hour visits. The juvenile court therefore abused
its discretion in failing to ensure adequate visitation by setting a
minimum duration for the visits. (See In re Rebecca S., supra,
181 Cal.App.4th at pp. 1313-1315 [visitation order that provided
for monitored visits for the parents with “[d]uration, frequency
and location to be determined by the legal guardian” was abuse of
discretion]; In re M.R., supra, 132 Cal.App.4th at pp. 272, 274
[juvenile court abused its discretion in ordering visitation be
“‘supervised and arranged by the legal guardians at their
discretion’” because the order “left every aspect of visitation,
other than supervision to the discretion of the legal guardian”].)
The fact Father had not consistently visited Erika and
Javier in 2019 and 2020, as argued by the Department, is not a
basis for the juvenile court’s failure to exercise its discretion in
setting a minimum duration of Father’s visits. To the extent the
juvenile court wanted to provide flexibility to the legal guardians,
11
it could have set a minimum duration for Father’s visits, then
clearly specified the conditions under which the legal guardians
could reduce the length of the visits. We therefore reverse the
visitation order and remand for the juvenile court to hold a new
post-permanency review hearing to consider Father’s request for
visitation in light of current conditions and to specify the
frequency and duration of Father’s visits.
DISPOSITION
Father’s appeal as to Manuel’s visitation order is dismissed
as moot. With respect to Erika and Javier, we reverse the
visitation order and remand to the juvenile court for a new post-
permanency review hearing at which the court must consider
Father’s request for visitation in light of current conditions and
specify the frequency and duration of Father’s visits.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
12