In re L.M. CA2/8 ( 2022 )

Filed 8/3/22 In re L.M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re L.M. et. al., Persons Coming B316381
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK14789A-B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.M.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County. Susan Ser, Judge. Reversed and remanded
with directions.
Maryann M. Goode, under appointment by the Court of
Appeal, for Appellant.
Dawyn Harrison, Acting County Counsel, David Michael
Miller, Deputy Counsel, for Respondent.
___________________________
Appellant Larry M. (Father) appeals from an order
granting legal guardianship of his children, L.M. and S.M.
(Children), to their paternal grandmother without also ordering a
minimum frequency and duration of parental visitation.
On appeal, Father claims that the juvenile court abused its
discretion by giving the legal guardian the discretion to
determine his right to visitation because it failed to specify the
frequency and duration of his visitation. We, and the Los
Angeles County Department of Children and Family Services
(Department), agree that the juvenile court erred by not ordering
the frequency and duration of his visits. We disagree with the
contention that the juvenile court erred by delegating to the
guardian the decision of whether the visits should be monitored.
The record actually reflects the court itself ordered monitored
visits.
We reverse and remand for further proceedings.
BACKGROUND
We recite only those facts relevant to the narrow issue on
appeal. On June 25, 2021, the juvenile court held a Welfare and
Institutions Code section 366.26 permanency hearing.1 During
the hearing, Father requested at least one unmonitored visit with
the Children per week. The court denied that request,
responding that Father’s visits would be “worked out with the
legal guardian. So I’m going to order just mutually agreed upon
visits and . . . the monitor.” The court determined that legal
guardianship was the appropriate permanent plan for the
Children, granted the Children’s paternal grandmother legal
guardianship, and, in its written order, ordered Father’s visits
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
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with the Children to be “mutually agreed upon with the legal
guardian and monitor.” The court then terminated its
dependency jurisdiction.
Father timely appealed.
DISCUSSION
We review the visitation order for abuse of discretion.
(In re S.H. (2011) 197 Cal.App.4th 1542, 1557 (S.H.).)
On appeal, Father argues that the juvenile court abused its
discretion by allowing the legal guardian to determine his
visitation.2 He argues that by ordering legal guardianship as the
permanent plan, the juvenile court was required to also issue a
visitation order under section 366.26, subdivision (c)(4).
Specifically, he claims that the juvenile court was required to
make orders as to the frequency, duration, and monitoring of his
visits with the Children. The Department “agrees with [f]ather
and does not oppose a limited reversal and remand with
2 Although Father’s opening brief states in its conclusion
that we should reverse the guardianship order, he does not argue
that the juvenile court’s guardianship determination was in
error, let alone support such an argument with facts and legal
citations. We begin with the presumption that the judgment is
correct, and the burden is on the appellant to overcome this
presumption with argument and citations to the record.
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609; Hernandez v.
First Student, Inc. (2019) 37 Cal.App.5th 270, 276–277; Cal.
Rules of Court, rule 8.204(a)(1)(C).) Father’s conclusory
statement does not suffice. Moreover, he only asks us to remand
with instructions for more specific visitation orders. We thus
construe his appeal as asking us to reverse only the visitation
portion of the order. We do not address any error as to the court’s
guardianship order apart from the issue of visitation.
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directions for the juvenile court to specify the frequency and
duration of visits between [F]ather and the [C]hildren.”
We agree with the parties that the juvenile court erred in
not ordering visitation for Father. Where a permanent plan of
legal guardianship is ordered for a child, section 366.26,
subdivision (c)(4)(C) governs parent-child visitation. (S.H., supra,
197 Cal.App.4th at p. 1558.) Section 366.26(c)(4)(C) provides that
when deciding legal guardianship, “[t]he court shall also make an
order for visitation with the parents or guardians 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).) There is no evidence in the
record that the juvenile court made a finding that Father’s
visitation would be detrimental to the physical or emotional well-
being of the Children. To the contrary, it ordered visitation to be
“worked out with the legal guardian” and “the monitor.”
The juvenile court was required to issue a visitation order
to ensure that visitation occurs. (In re Ethan J. (2015) 236
Cal.App.4th 654, 661.) “Because the trial court was required to
make a visitation order unless it found that visitation was not in
the children’s best interest, it could not delegate authority to the
legal guardian to decide whether visitation would occur.” (In re
M.R. (2005) 132 Cal.App.4th 269, 274 (M.R.).) While a court may
leave the place, time, and manner of visitation to the discretion of
the legal guardian, leaving the frequency and duration of visits to
be determined with the guardian improperly allows the guardian
to decide whether visitation will occur. (In re Rebecca S. (2010)
181 Cal.App.4th 1310, 1314; M.R., supra, 132 Cal.App.4th at
p. 274.)
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Father also argues that whether his visits are to be
monitored should be decided by the court, not the guardian.
But the juvenile court already ordered his visits monitored; it did
not leave this issue to the discretion of the guardian. It did not
terminate the services of the monitor. The court ordered visits to
be “mutually agreed upon with the legal guardian and monitor,”
and stated, “I’m going to order just mutually agreed upon visits
and . . . the monitor.” Monitoring was clearly contemplated by
the order.
Accordingly, we reverse and remand to the juvenile court to
determine the frequency and duration of Father’s visits.
DISPOSITION
The order terminating jurisdiction is reversed. We remand
to the juvenile court to make a visitation order that specifies the
duration and frequency of Father’s visits. Upon issuing a
visitation order, the court shall terminate its jurisdiction.
*
HARUTUNIAN, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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