Filed 8/10/15 N.E. v. Superior Court 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

N.E.,

Petitioner,

v.

THE SUPERIOR COURT OF THE STATE 

OF CALIFORNIA FOR THE COUNTY OF 

LOS ANGELES,

Respondent.

LOS ANGELES COUNTY DEPARTMENT 

OF CHILDREN AND FAMILY 

SERVICES, 

Real Party in Interest.

 B263246

 (Super. Ct. No. CK96800)

Writ petition to review order setting hearing under Welfare and Institutions Code 

section 366.26. Emma Castro, Juvenile Court Referee. Petition granted. 

Law Office of Timothy Martella and Rebecca Harkness for Petitioner.

No appearance for Respondent.

Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel, 

Melinda A. Green, Deputy County Counsel for Real Party in Interest Los Angeles 

County Department of Children and Family Services. 

_______________________________
2

Petitioner N.E. (Mother) seeks extraordinary relief (Welf. & Inst. Code, § 366.26, 

subd. (l);1 Cal. Rules of Court, rule 8.452) from the juvenile court’s order, made after she 

had received reunification services for the maximum allowable time, setting a hearing 

pursuant to section 366.26 to consider termination of parental rights and implementation 

of a permanent plan for her 15-year-old son E.E. We grant the petition and remand for 

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On November 26, 2012, when E.E. was 13 years old, the Los Angeles County 

Department of Children and Family Services (Department) received a referral alleging 

Mother was hospitalized because she was hearing voices and threatening to harm herself. 

The referral also stated that Mother had recently cut her wrist, had physical fights with 

K.E. (Father), her husband and the father of E.E. and five-year-old J.E.,2 and threw 

knives and forks at Father.

E.E. told the Department’s social worker that, a week earlier, Mother had told him 

to “get [Father] because it’s all driving me crazy,” and that she “might slit you and your 

brother’s necks.” E.E. stated that Mother proceeded to act erratically, accused him of 

lying, and backed him up against a wall and began to choke him. E.E., who had a red 

mark on his neck from Mother’s hand, ran to a neighbor’s house to call Father. J.E. told 

the social worker that Mother often spoke to the television set because she believed there 

were people inside, and she regularly engaged in other odd behavior. J.E. stated that he 

did not feel safe with Mother. 

Mother told the social worker she cut her wrist to ease her pain from pancreatitis. 

Mother denied having any mental issues, but stated she felt overwhelmed with caring for 

her children, especially as Father would leave the home for days and provided little 

financial support. 

 

1 Statutory references are to this code unless otherwise indicated.

2

J.E. is not a party in this proceeding.
3

On December 5, 2012 the Department filed a petition under section 300 to declare 

E.E. and J.E. court dependents. The petition alleged the children were at risk due to 

Mother’s mental and emotional problems, her physical abuse of E.E., and the domestic 

violence between Mother and Father. The court ordered the children detained in the 

home of their paternal grandmother. 

In its report for the jurisdiction and disposition hearing, set for January 17, 2013, 

the Department indicated Father and the children confirmed that Mother engaged in 

bizarre behavior, and added that police were often summoned to the home when Father 

and Mother had physical altercations. Records from Mother’s most recent hospitalization 

reflected a diagnosis of major depressive disorder and alcohol dependence. In a Last 

Minute Information report submitted on July 17, 2013 the Department reported that, after 

the children were removed from her care, Mother had visited them just once, on 

Christmas; she continued to display bizarre behavior including seeing famous people at 

Walmart, blaming E.E. for her hospitalization, and threatening to take the children in the 

middle of the night. E.E. told the social worker that he feared for his and J.E.’s life on 

the day Mother choked him, and he did not want to see or speak with Mother “when she’s 

like this”. A report by a Multidisciplinary Assessment Team stated that E.E. did not want 

to return to the family home due to “too many bad memories”, and that he showed 

evidence of avoidance (avoiding places and people who remind him of a stressful event) 

and numbing (not having feelings about the stressful event), and was in need of mental 

health services to help him cope with the trauma he was suffering. 

On January 17, 2013 the juvenile court ordered visitation for Mother with the 

children monitored by a monitor approved by the Department, and continued the matter 

to March 1, 2013 for a contested adjudication hearing. 

On March 1, 2013 the Department filed an amended section 300 petition adding an 

allegation that Mother had a history of substance abuse and had tested positive for 

amphetamines and methamphetamines on January 26, 2013. Mother, who had again 

been hospitalized for exhibiting suicidal ideation and threatening to harm herself by 

jumping in front of a car, did not appear for the adjudication hearing. The court ordered 
4

the Department to refer E.E. and J.E. to trauma-focused cognitive behavioral therapy and 

continued the adjudication hearing to April 11, 2013. In a Last Minute Information 

report submitted on April 11, 2013, the Department reported that E.E. and J.E. were 

receiving weekly trauma-focused cognitive behavioral therapy. Mother was visiting with 

J.E. on a regular basis, but E.E. refused to visit with Mother. On April 11, 2013 the court 

granted discretion to the Department to liberalize Mother’s visits and continued the 

adjudication hearing to June 17, 2013. 

In a supplemental report for the adjudication hearing the Department stated 

Mother was seeing a psychiatrist every other week and residing in housing for the 

homeless. Mother continued to visit with J.E. but not with E.E.

On July 16, 2013, following several additional continuances of the adjudication 

hearing, an agreement was reached in mediation. Mother submitted on an amended 

petition and agreed to dispositional orders granting her reunification services and 

monitored visitation with the children. As to E.E., the visits were to take place in a 

therapeutic setting. On July 18, 2013 the juvenile court incorporated the mediation 

agreement into an order and continued the matter to January 16, 2014 for the six-month 

review hearing. (§ 366.21, subd. (e).)

In its report for the six-month review hearing the Department stated that, although 

the children were happy, healthy and well cared for in the paternal grandmother’s home, 

it had concerns about their emotional stability. In particular, E.E. continued to refuse to 

visit with Mother and, although the social worker encouraged visitation, E.E.’s therapist 

insisted that E.E. was not prepared even to see Mother and recommended that E.E. 

continue to receive therapy without Mother’s involvement. E.E. was diagnosed with 

post-traumatic stress disorder, and stated that he had no interest in living with his parents

and wanted to remain with the paternal grandmother. E.E. was in the ninth grade, doing 

well in honors classes, and hoped to become a doctor. On January 16, 2014 the court 

continued the matter to March 28, 2014 for a contested six-month review hearing. 

In a report for the contested hearing the Department indicated E.E. continued to 

inform the social worker and the paternal grandmother that he did not want to visit with 
5

Mother or participate in therapy with her. E.E.’s therapist continued to believe that, 

given his precarious emotional and psychological condition, it was not in E.E.’s best 

interest to have therapy or visits with Mother. The Department’s social worker 

recommended that E.E. begin conjoint therapy with Mother once the therapist deemed it 

appropriate. 

On March 28, 2014 the court continued the matter to June 25, 2014 and ordered 

the Department to prepare a supplemental report. In the report, the Department stated 

E.E. continued to insist that he had no interest in returning to Mother’s home or visiting 

with her. E.E.’s therapist again stated that it would not be therapeutically appropriate for 

E.E. to visit with Mother or to begin therapy with her. The therapist recommended that 

Mother undergo a psychological evaluation. (Evid. Code, § 730.)

The court conducted the six-month review hearing on June 25, 2014. Mother and 

Father withdrew their contest. The court ordered J.E. placed with Father, from whom 

Mother had separated, under the Department’s supervision, and ordered Mother’s visits

with E.E. to “remain in a therapeutic setting if the therapist deems appropriate.” The 

court ordered conjoint therapy for Mother and E.E. when deemed appropriate by the 

therapist. The court found the Department had provided reasonable reunification 

services, appointed Suzanne Dupee, M.D., to conduct the psychological evaluation of 

Mother, and set the 12-month review hearing (§ 366.21, subd. (f)) for December 18, 

2014. 

In its report for the 12-month review hearing the Department stated that E.E. 

continued to excel in school and was happy in his placement with the paternal 

grandmother. E.E. told the social worker, his therapist, his attorney and his grandmother 

that he had no interest in reunifying with Mother, and he refused to participate in 

visitation or in therapy with Mother. In view of E.E.’s refusal to participate in therapy 

with Mother and his great anxiety about visiting her, E.E.’s therapists determined that 

therapy for E.E. was not currently clinically appropriate and discontinued therapy 

services for him. Mother was in compliance with her case plan, but the Department was 
6

concerned that she had not fully acknowledged or taken responsibility for her physical 

attack on E.E. and was in denial about her precarious mental health condition. 

The Department further reported that the director of Ties for Families, which had 

been providing therapy services for E.E. until they were terminated on July 30, 2014, told 

the social worker that E.E. displayed trauma and anxiety whenever he was faced with the 

prospect of having any discussions with Mother, and under these circumstances it would 

not be appropriate to force E.E. to participate in services with Mother. When the social 

worker met with E.E. on October 10, 2014 to discuss the possibility of resuming therapy, 

E.E. explained that he did not want even to see Mother and stated angrily, “If I have to 

meet with my mom in order for the child services to be out of my life, I’ll do it,” adding 

that unless he were forced to continue with services, he did not intend to comply and he 

had no interest in having any relationship with Mother. Mother sent a letter to E.E. 

explaining that she missed him and hoped to visit with him, but E.E. refused even to look 

at the letter, and instead had his grandmother read it to him. E.E. was angered by the 

letter and did not reply.

With its report, the Department submitted Dr. Dupee’s psychiatric evaluation of 

Mother. Dr. Dupee stated that Mother had been psychiatrically hospitalized six times 

since November of 2012 and was taking multiple medications to address her problems 

with depression, anxiety and psychosis. Dr. Dupee observed that, during her interview, 

Mother displayed significant psychomotor retardation or slowing of her movements, 

walked very slowly, sat almost like a statue, had a delayed response in her speech, and 

showed evidence of depression and anxiety. Dr. Dupee had interviewed two of Mother’s 

therapists. One of them believed Mother could be able to parent her children despite her 

mental illness. The second therapist disagreed, and expressed concerns about Mother’s 

ability to parent effectively given her slow cognition and movement. Dr. Dupee 

diagnosed Mother as suffering from chronic schizophrenia, as reflected by her various 

paranoid delusions and suicidal events, and expressed concern that Mother would be 

physically and emotionally abusive to her children. Dr. Dupee concluded Mother was 

not fit to parent the children on a full-time basis and, although therapeutic monitored 
7

visits with E.E. would be beneficial, it was not surprising that E.E. refused to see or visit 

with Mother at all. The Department recommended the court terminate reunification 

services for Mother as to E.E.

On December 18, 2014 the court terminated jurisdiction over J.E. with a family

court order, set the 12-month hearing as to E.E. for a contest for March 12, 2015, and 

ordered the Department to prepare a supplemental report. 

In a Last Minute Information report submitted on March 12, 2015 the Department 

explained that the social worker had met with E.E. on several occasions to discuss 

visitation with Mother, but E.E. remained adamant in refusing any visits. E.E. told the 

social worker that he had no interest in visiting or participating in therapeutic services 

with Mother, was not interested in seeing Mother in the foreseeable future, and wanted to 

continue to live with his grandmother. The Department recommended the court 

terminate reunification for Mother as to E.E. and set a hearing pursuant to section 366.26. 

No testimony was taken at the contested 12-month review hearing on March 12, 

2015. After the court admitted into evidence the Department’s reports and Dr. Dupee’s 

psychological evaluation of Mother, counsel for the Department requested that the court 

terminate reunification services for Mother as to E.E. Counsel for E.E. joined in the 

Department’s request, observing that Mother clearly suffered from serious mental illness, 

E.E. did not feel safe with Mother, and Dr. Dupee had concluded Mother was not fit to 

parent E.E. and might be physically and emotionally abusive to E.E. if he were returned 

to her care. 

Counsel for Mother requested that the court order E.E.’s return to Mother’s care, 

or in the alternative order an extension of reunification services, urging that her right to 

reunification had been thwarted by allowing E.E. to veto any visitation with her.

The court terminated reunification services for Mother. Initially, the court 

observed that because 25 months had elapsed from the date E.E. was removed from 

Mother’s care, the case had exceeded the 18-month statutory limit for reunification and 

further reunification services could not be offered to Mother. The court then found that 

the return of E.E. to Mother would be detrimental to E.E., observing that E.E. sustained 
8

severe trauma when Mother suffered a psychotic breakdown and attacked him physically. 

As a result of this trauma, E.E. developed an overwhelming fear for his safety and wellbeing in Mother’s presence and consistently refused to visit or participate in therapy with 

Mother. The court further observed that Dr. Dupee expressed serious concerns that 

Mother would be physically and emotionally abusive to E.E. and was not a fit parent for 

E.E. The court then set the matter for a hearing pursuant to section 366.26.

CONTENTION

Mother principally contends the juvenile court violated the separation of powers 

doctrine by abdicating its responsibility to determine whether any visitation between 

Mother and E.E. would occur, and delegating the responsibility to E.E.’s therapists.

DISCUSSION

1. The Juvenile Court’s Visitation Order Is an Invalid Delegation of Judicial 

Authority 

Visitation is a necessary and integral component of any reunification plan. 

(§ 362.1, subd. (a)(1)(A); In re S.H. (2003) 111 Cal.App.4th 310, 317 (S.H.); In re C.C.

(2009) 172 Cal.App.4th 1481, 1489.) “An obvious prerequisite to family reunification is 

regular visits between the noncustodial parent . . . and the dependent [child] ‘as 

frequent[ly] as possible, consistent with the well-being of the [child].’” (In re Julie M.

(1999) 69 Cal.App.4th 41, 49-50 (Julie M.).) Although the Department’s social worker 

may be given responsibility to manage the details of the visits, and the child’s input and 

refusal and the possible adverse consequences if a visit is forced against the child’s will 

are factors to be considered in administering visitation (Julie M., supra, 69 Cal.App.4th at 

pp. 50-51), “the power to decide whether any visitation occurs belongs to the court alone. 

(Citation.)” (S.H., supra, 111 Cal.App.4th at p. 317.) The court may not delegate this 

power to a third party, whether social worker, therapist or the child and, if it does, the 

court violates the separation of powers doctrine. (S.H., supra, 111 Cal.App.4th at 

pp. 317-318; Julie M., supra, 69 Cal.App.4th at p. 51.)
9

Although here the court did not issue an order expressly making visitation 

contingent on E.E.’s consent or on the approval of his therapist, its visitation order made 

at the six-month review hearing was inadequate under the circumstances of the case. In 

three separate reports for the hearing the Department indicated that, in view of E.E.’s 

refusal to visit with Mother and his therapist’s recommendation that visits not take place, 

visits between E.E. and Mother were not occurring at all.3 Under these circumstances, 

the court’s visitation order essentially granted E.E., the therapist, and the social worker 

authority to determine whether any visit would occur, in derogation of the court’s 

responsibility to regulate visitation between E.E. and Mother. The court failed to ensure 

that at least some visitation would in fact occur or to describe the frequency and duration 

of visits. Nor did the court give the parties any guidance about the circumstances under 

which visitation would be permitted, how the determinations whether to allow visits were 

to be made, and who was to be involved in making those decisions. While the court 

ordered visitation for Mother, it did not provide any real assurance that visitation would 

occur.4 As a result, Mother’s right to visitation was illusory. (See S.H., supra, 111 

Cal.App.4th at p. 319.)5

 

3 As noted earlier, the only visit took place in December of 2012, just weeks after 

the section 300 petition was filed and six months before the petition was sustained in July 

of 2013. 

4 We note that, although the juvenile court had the option to issue a “no visitation” 

order upon a determination that visitation would jeopardize E.E.’s safety (§ 362.1, subd. 

(a)(1)(B)), it did not exercise that option.

5 Because we grant relief to Mother on this ground, we do not address her additional 

contentions.
10

2. Mother Is Entitled to Additional Reunification Services Beyond the 18-Month 

Statutory Limit 

As we have observed, 25 months had elapsed from the time E.E. was removed 

from Mother’s care when the juvenile court conducted the 12-month review hearing, 

exceeding the 18-month statutory limit for reunification. (§§ 361.5, subd. (a)(3), par. 3, 

366.22.) Under these circumstances, reunification services may continue only when 

exceptional circumstances exist, involving some external factor that thwarted the parent’s 

efforts at reunification. (See, e.g., In re Dino E. (1992) 6 Cal.App.4th 1768, 1777-1778; 

In re Daniel G. (1994) 25 Cal.App.4th 1205, 1209, 1212-1214.) Those circumstances are 

present in this case. Courts have long recognized that, in the context of dependency 

proceedings, a lack of visitation may “virtually assure [ ] the erosion (and termination) of 

any meaningful relationship” between parent and child. (In re Brittany S. (1993) 

17 Cal.App.4th 1399, 1407.) As we observed in In re C.C. (2009) 172 Cal.App.4th 1481, 

“Without visitation of some sort, it is virtually impossible for a parent to achieve 

reunification.” (Id. at p. 1491.) We thus find exceptional circumstances warranting 

extension of reunification services beyond the statutory limit. 

DISPOSITION

The petition is granted. The matter is remanded to the juvenile court, which is 

directed to proceed as follows: The court shall vacate its order of March 12, 2015 

terminating reunification services for Mother and setting the case for a hearing pursuant 

to section 366.26; make a new order extending reunification services for Mother for an 

additional six months; conduct a new hearing on the issue of visitation; and fashion an 

appropriate visitation order. The order shall provide for a minimum number of visits per 

month to be administered by the Department and mental health professionals working 

with it. In the event a period of one month elapses without any visit (either because E.E. 

refuses to attend a particular visit, or his therapist opines that E.E. will suffer adverse 

consequences if a visit is forced on him, or for any other reason), the order shall require 

the Department to report the matter to the juvenile court. The report shall advise the 

court of the reasons the visitation had not occurred, including but not limited to E.E.’s 
11

wishes and his therapist’s opinion regarding adverse consequences if a visit were forced 

against E.E.’s will. (See S.H., supra, 111 Cal.App.4th at pp. 319-320; In re Julie M., 

supra, 69 Cal.App.4th 41, 51.) The court may then reconsider its order in response to the 

existing situation.6

This decision shall become final as to this court within 10 days after filing. (Cal. 

Rules of Court, rule 8.490 (b)(2)(A).) 

ZELON, J. 

We concur:

PERLUSS, P J.

SEGAL, J. 

 

6 The court takes judicial notice of the juvenile court’s order of July 9, 2015 

selecting and implementing a permanent plan for E.E. The juvenile court is ordered to

vacate its July 9, 2015 order.