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In Re S.S. et al., Persons Coming Under the Juvenile Court v. C.S

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


February 2, 2011

IN RE S.S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
C.S., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. JD225831, JD225832, JD225833)

The opinion of the court was delivered by: Butz , J.

In re S.S.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

C.S., mother of the minors, appeals from orders of the juvenile court selecting a permanent plan of guardianship. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 Mother contends the court's order for visitation delegates power to the guardian to determine whether visits will occur. We shall affirm.

FACTUAL BACKGROUND

The minors, S.S., aged six; M.K., aged eight; and J.K., aged 10, were removed in February 2007 from parental custody due to excessive discipline in the home. Additionally, mother had mental health issues possibly related to a stroke and needed therapy and a medication evaluation.

The court adjudged the minors dependents in July 2007 and ordered a psychological evaluation to determine whether mother could benefit from the service plan. Reunification services were provided to the family for over two years and ultimately terminated in October 2009. The Sacramento County Department of Health and Human Services (the Department) had recommended a permanent plan of guardianship; however, the court ordered long-term foster care.

Soon after termination of services, the Department filed a petition for modification asking the court to set a selection and implementation hearing to consider guardianship. The court granted the petition.

The assessment stated mother currently had weekly unsupervised visits with the minors at the maternal grandparents' home. The minors looked forward to visits and were concerned visits would be discontinued if guardianship was granted. The minors wanted to maintain contact with their parents and were assured there would be a request for continued visitation. The foster parent understood the need for maintaining contact between the minors and the parents and was willing to maintain the current visitation schedule if appointed guardian. The Department assessed that legal guardianship was the best permanent plan for the minors, both because J.K. objected to adoption and because the current caretakers, while willing to be guardians for the minors, declined to adopt them.

At the hearing, mother testified she had overcome her problems and maintained a home and income. She requested a permanent plan of long-term foster care. The court rejected the request and expressed confidence the guardian would promote contact between the minors and their biological family as she had demonstrated the ability to do so during the time the minors were in her care. The court found it would be detrimental to terminate parental rights, selected guardianship as the permanent plan with the current foster parent as guardian, and terminated the dependency. The court ordered that the parents "shall be allowed contact with the children as arranged with the guardian and subject to any reasonable conditions, including supervision, as the guardian considers necessary." The written order stated, "Visitation between the child and [parents] is scheduled as follows []: As arranged with the guardian(s) subject to any reasonable conditions deemed appropriate by the guardian, including supervision."

DISCUSSION

Mother contends that because the court's order for visitation does not specify regular contact, the court improperly delegated to the guardian the determination of whether any visits would occur.

Section 366.26, subdivision (c)(4)(C), states that when guardianship is selected as the permanent plan, the court shall "make 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." The court cannot delegate authority to determine whether visitation will occur, it may only delegate the ministerial aspects of the visitation. (In re M.R. (2005) 132 Cal.App.4th 269, 274.) The court in M.R. remanded the case to the juvenile court to specify the frequency and duration of visits. (Ibid.) However, frequency and duration are details which may be delegated so long as the visitation order does not place absolute discretion to determine whether any visitation will occur in the hands of the guardian. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374; In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1165.)

Mother did not object to the terms of the visitation order in the juvenile court and has forfeited the issue on appeal. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Christopher B. (1996) 43 Cal.App.4th 551, 558; see also In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

Even were we to consider the issue on the merits (In re S.B., supra, 32 Cal.4th at p. 1293), mother cannot prevail. The court's order, taken in the context of the minors' wishes as expressed in the assessment and the court's comments prior to entering the order, clearly establishes the right to visitation and is within the parameters discussed in In re Moriah T., supra, 23 Cal.App.4th at pages 1374, 1376-1377. While it would be preferable, in order to avoid confusion and to simplify enforcement, for the court to specify that visitation is to be "regular," on this record no error appears.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: RAYE, P. J. ROBIE , J.


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