Filed 5/1/14 In re D.H. CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

In re D.H., a Person Coming Under the Juvenile 

Court Law. 

FRESNO COUNTY DEPARTMENT OF 

SOCIAL SERVICES, 

 Plaintiff and Respondent, 

 v. 

KIMBERLY G., 

 Defendant and Appellant. 

F067787 

(Super. Ct. No. 0093668-2) 

OPINION

THE COURT* 

 APPEAL from an order of the Superior Court of Fresno County. Mary Dolas, 

Commissioner. 

 Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 

* Before Levy, Acting P.J., Kane, J. and Franson, J. 
2. 

 Kevin Briggs, County Counsel, William G. Smith, Deputy County Counsel, for 

Plaintiff and Respondent. 

-ooOoo- 

 Kimberly G. (mother) appeals from an order made at the August 5, 2013, Welfare 

and Institutions Code section 3881 hearing. Mother contends that, in its order, the 

juvenile court erroneously delegated authority to the Fresno County Department of Social 

Services (the Department) over her visits with her daughter D.H. We affirm. 

FACTUAL AND PROCEDURAL SUMMARY 

Section 300 Dependency Petition 

Eleven-year-old D.H. came to the attention of Santa Clara social services in April 

of 2012, when mother was arrested in Santa Clara County for being under the influence 

of methamphetamine while driving with D.H. in the car. A petition pursuant to section 

300, subdivisions (b) and (g) was filed on April 10, 2012. When mother was arrested, 

there was no alternate caretaker available for D.H. Mother had untreated mental health 

issues and told the arresting officer that she was Jesus and that she was running from the 

devil who was trying to kill D.H. Mother had received voluntary family maintenance 

services from 2002 to 2009, due to substantiated general neglect. She had a history of 

substance abuse for which she received treatment after serving a prison term, but the 

problem was ongoing. Mother’s parental rights to two other children were terminated in 

2001. The whereabouts of D.H.’s father (father) was unknown. 

 At the time of mother’s arrest, D.H. was “very thin, gaunt and tired.” She said she 

had not attended school in a very long time. D.H. was worried about mother because she 

seemed very sad. D.H. appeared to be developmentally delayed, had a speech 

impediment which made her difficult to understand, and she did not know how to read. 

 

1 All further statutory references are to the Welfare and Institutions Code. 
3. 

D.H. had an “Individualized Education Plan” due to her delays and autistic-like features 

and behaviors. 

 The section 300 petition was amended on April 18, 2012, to include information 

that mother had another child being raised by that child’s father; that father had a 

criminal and substance abuse history; that father knew D.H. was not safe in her mother’s 

care but failed to take protective measures on her behalf; and that father had not seen 

D.H. for over a year. 

Jurisdiction Report 

 The report prepared in anticipation of the jurisdiction hearing to be held in May of 

2012, stated that D.H. was in a confidential foster home, she was receiving nutritional 

supplements, and she was working on her numbers and letters and was able to begin 

school. D.H. had had a possible seizure at school. D.H.’s parents divorced in 2005. 

 Prior child welfare history for mother included a 1990 accident in which mother 

was the passenger in a car driven by a boyfriend who was driving drunk. Mother had 

been holding her two-year-old daughter Crystal on her lap at the time and the child died 

from injuries sustained in the accident. In 1992 mother was placed in a psychiatric 5150 

hold. Between 1992 and 1998, there were numerous reports involving mother’s 

daughters Alexandra and Vanessa, most on them unsubstantiated or unfounded. In 1999, 

a petition was sustained regarding Alexandra, due to mother’s drug use and threat to kill 

herself. Alexandra was later adopted by a family member. 

 Between 2008 and 2010, four allegations of physical abuse of D.H. by mother and 

allegations of sexual abuse were evaluated and found to be inconclusive or 

unsubstantiated. Mother received family maintenance services in 2009 for being under 

the influence and for problems providing D.H. with mental health and educational 

services. Mother’s criminal history included charges of driving under the influence, 

possession of drugs, theft, violating probation, receiving stolen property and inflicting 

injury on a child. 
4. 

 At the time of mother’s most recent arrest, D.H. was not adequately dressed for 

the weather. When officers approached, mother tossed a brass knife with a Nazi swastika 

on it in the back seat of the car and attempted to run onto the highway. She was arrested 

for driving under the influence, resisting arrest, and child endangerment. Mother was 

placed in a psychiatric 5250 hold and diagnosed with a number of mental health issues, as 

well as amphetamine and alcohol dependency and drug abuse. According to mother, she 

had been on anxiety and sleep medication for nine years until the doctor suddenly 

stopped prescribing them the month prior. Mother began receiving SSI after Crystal 

died. 

 According to Alexandra, who was now an adult, she had not been able to see D.H. 

since 2010, when she looked “homeless” due to her clothing and lack of hygiene. 

Alexandra described an incident in which D.H. wanted to beat up her baby doll and 

repeatedly used expletives. Once placed in protective custody, D.H. displayed 

knowledge of topics beyond her years. She was preoccupied with the movie Nightmare 

on Elm Street and the character Freddy Krueger. D.H. drew pictures of nude women she 

saw in movies her mother let her watch. She described the aunt who adopted Alexandra 

as evil. 

 D.H.’s therapist described D.H. as “almost feral, infantile and fragile ....” She 

was under-socialized and deprived. D.H. attended six schools in four years and never for 

more than six months in an academic year. She demonstrated autistic-like behaviors, 

though her mother was resistant to the diagnosis. D.H. was habitually truant and tardy 

and had not attended school since December of 2010. 

 According to mother, she did not currently use drugs but did drink alcohol. Father 

described mother as “absolutely insane,” and claimed that she and her current husband 

(who had swastikas tattooed all over his body) threatened to kill him. Father was afraid 

to take custody of D.H. because he was afraid she would harm his other child. 

Jurisdiction and Transfer Hearings 
5. 

 On May 14, 2012, the juvenile court sustained the petition pursuant to section 300, 

subdivisions (b) and (g) and transferred the case to Fresno County, where mother was 

living. The juvenile court appointed a Court Appointed Special Advocate (CASA) for 

D.H., and disposition was set for September of 2012. 

September 13, 2012, CASA Report 

 The CASA report dated September 13, 2012, stated that D.H. was in foster care. 

The CASA noted that D.H. had a large collection of paper dolls she had made and 

named; she was a “picky eater” and preferred the junk food her mother gave her; she used 

the bathroom every 20 to 30 minutes, indicating a possible urinary problem; and she 

tested at the first grade level of school. 

 The CASA described mother as mentally ill and that her visits with D.H. were 

inappropriate and combative. On one occasion, D.H. became extremely anxious and 

panicked when she saw her mother and D.H.’s heart could be seen beating in her chest. 

Although D.H. said she loved and wanted to be with mother, the contact resulted in 

heightened anxiety, panic and regression. 

Disposition Report and Hearing 

 The report prepared in anticipation of disposition, recommended that mother be 

denied reunification services pursuant to section 361.5, subdivision (b)(10), (11) and 

(13).2 The social worker opined that, while D.H. and mother had a good relationship, the 

relationship was not healthy. Mother exposed D.H. to a “toxic environment” and 

“inappropriate behavior,” and that while it was the only home D.H. knew and felt 

comfortable in, it posed an “extreme safety concern.” 

 

2 Section 361.5, subdivision (b) provides that reunification services need not be 

provided the parent if: (10) the parent failed to reunify with a sibling of the child; (11) the 

parental rights of the parent to a sibling of the child have been permanently severed; and 

(13) the parent has a history of chronic or abusive drug or alcohol use. 
6. 

 On one supervised visit, the social worker had to redirect mother from talking 

about traumatic events in her life. The therapist who supervised five visits between 

mother and D.H. reported that mother interacted in a positive and loving manner with 

D.H. and learned new skills and set boundaries when they were modeled for her. 

At the disposition hearing, D.H. was removed from the custody of mother and 

father. Reunification services were ordered for father, but denied for mother. The 

juvenile court subsequently terminated services to father after he waived them. 

March 15, 2013, CASA Report 

 The CASA report of March 15, 2013, stated that, while D.H. was in temporary 

foster care because her regular care provider was out of the country, she kicked walls, 

plunged pencils into paper and furniture, shouted profanities, and behaved violently with 

small children. D.H. had not yet received a formal diagnosis and lacked appropriate 

special needs services and support. She was unable to maintain reasonable personal 

relationships and posed a threat to small children and animals. At one point, she dropped 

a dog on the floor and broke its leg, but displayed no feelings. After nine months with 

her care provider, she was beginning to show flashes of empathy and compassion to 

animals and people. She was beginning to learn hygiene practices. 

 During a psychological evaluation, D.H. demonstrated a flat effect and was 

irritable and noncompliant. She stabbed a pencil through the test protocol and into the 

wall “while laughing maniacally” and was unresponsive to directions to stop. She was 

reported to be aggressive with her sibling during a visit with father and father excused 

himself from further visits with her. The CASA recommended mother’s visitation be 

tapered back to bi-weekly and then monthly. 

Review Reports and Hearings 

 A report prepared in anticipation of the review hearing described mother as being 

under the influence or experiencing withdrawal symptoms during visits, as she was hyper 

talkative, easily distracted and agitated, and stated she was “sick” and needed medication. 
7. 

The social worker recommended scheduling D.H.’s therapy for the day after her visits 

with mother to assess how the visits were affecting her, but the visits occurred on Fridays 

and the foster mother and CASA requested that D.H. be allowed the weekend to 

recuperate before school on Mondays. The social worker suggested the visits continue 

but decrease, due to mother’s “suspicious” behaviors. 

 An addendum report prepared in anticipation of the review hearing stated that, 

during a psychological examination, D.H. was found to have several social behaviors 

contrary to a diagnosis of autism. Instead, she was diagnosed with “R/O Emotional 

Disorder NOS, R/O Attachment Disorder. ...Cognitive Functioning in the Significantly 

Delayed Range with Adaptive Behaviors in the Borderline to Low average range .... R/O 

Mild Mental Retardation. ...Sensory Integration Issues.” The doctor recommended a 

more complete psychological evaluation to assess for emotional issues, to consider a 

referral for an occupational therapist, to reassess in two years, and other supportive 

psychological and social supportive services. 

 D.H.’s therapist recommended reducing mother’s visits if her long-term 

permanency goal did not include reunification. The therapist thought weekly visits had a 

negative impact on D.H.’s emotional health and may have triggered some of her negative 

behaviors towards others, as evidenced by reports from teachers and care providers. 

 The Department continued to assess the most appropriate plan for D.H., which at 

this point was a planned permanent living arrangement. 

 The juvenile court ordered a full psychological evaluation to assess D.H. for 

possible reactive detachment disorder or posttraumatic stress disorder and any resultant 

recommended treatment. It also ordered an occupational therapy exam to address 

possible sensory integration issues, as well as a psychiatric medication evaluation to 

address possible anxiety. Mother opposed giving D.H. psychotropic medication, but the 

juvenile court ordered them. Mother’s visits were reduced to twice a month. 

Section 388 Petition 
8. 

 Shortly after mother’s visits were reduced, D.H.’s attorney filed a section 388 

petition and requested that the juvenile court follow D.H.’s therapist’s recommendation 

to suspend visits between D.H. and mother, until mother could be further assessed. 

According to the therapist, mother was late eight times to visits and failed to attend four 

visits since August of 2012. In April of 2013, mother reported the foster parent was 

raping D.H. On another occasion, mother stated that she believed D.H. was being 

harmed, but she did not want to say that out loud because then it would be true. Mother 

did not want D.H. in her current placement, but wanted her back in her own care. Mother 

said she was going to make it happen and, if anyone tried to stop her, she would call the 

National Guard and the police. The therapist contacted the social worker, who cancelled 

the upcoming visit out of concern and recommended the visits be suspended or 

discontinued until social services could further assess the safety of the visits. 

 According to the supervised visitation therapist, there did not appear to be an 

emotional benefit to continuing visits between D.H. and mother, due to mother’s missed 

visits and odd behavior. The therapist opined that D.H.’s symptoms would likely 

increase if she continued to be exposed to mother’s mental health issues. The therapist 

did not think there was any mental health benefit to D.H. to continue visitation at this 

time and she did not anticipate any significant emotional detriment to discontinue them. 

D.H. had been referred for a neuropsychological evaluation. 

Interim Order 

 On May 30, 2013, the juvenile court issued an interim order suspending mother’s 

visitation. 

CASA Addendum Report 

 The report prepared by the CASA stated that the foster parent was frustrated and 

angry at the continued lack of targeted and adequate services for D.H.’s significant 

special needs. Both the CASA and foster parent agreed that D.H. needed to be tested for 

Autism and Asperger’s Syndrome, but that others focused on “trauma-related behaviors.” 
9. 

According to D.H.’s care provider, caring for her was all consuming. No one else could 

manage her constant and extreme behaviors. The care provider would not be able to keep 

D.H. much longer unless the Department thoroughly addressed her special needs. 

 While D.H. continued to mention that she missed her mother, she did so less 

frequently. Her behaviors had improved and she was not as anxious as she had been. 

D.H. did worry about mother and wanted to help her stop drinking and using drugs. The 

CASA opined that D.H. needed to be protected from further psychological and emotional 

harm caused by mother’s visits. 

 On July 8, 2013, the juvenile court ordered another temporary order suspending 

mother’s visits. 

Section 388 Reports and Hearing 

 An addendum report prepared in anticipation of the section 388 hearing stated 

that, according to the therapist, while D.H. loved her mother and wanted to visits her, she 

had a tendency to worry about her and she became “parentified” in some aspects, which 

was unhealthy. The therapist opined that visitation could be reestablished if mother got 

to a place where she was emotionally present and stable. 

Both the CASA and care provider supported visitation with mother if both D.H. 

and mother had appropriate services to deal with their issues. 

 D.H. was diagnosed with posttraumatic stress disorder with dissociative features, 

attention deficit hyperactive disorder, moderate language/speech disorder, and insomnia. 

The psychologist opined that D.H. could benefit from contact with mother, especially 

since adoption was not being considered. The psychologist recommended “parent/child 

therapy be the appropriate intervention for D.H. to have more quality time with her 

mother and have a licensed clinician to monitor and intervene effectively.” 

 Mother was not present at the August 5, 2013, contested section 388 hearing, but 

mother’s counsel objected to the proposed change order. 
10. 

 The juvenile court questioned counsel for the Department as to whether the 

determination of if and when to resume visits was going to be up to the therapist. 

Counsel stated that the therapist would be “one voice in that conversation,” but that the 

Department wanted to ensure that D.H. was doing well and was stable before resuming 

visits. Counsel also stated that, while the therapist would be meeting with mother to 

determine if she believed it was appropriate to go forward with visits, the Department 

would continue to do its own assessment with regard to mother as well. The Department 

wanted to ensure that mother have her “mental health and her behavior more under 

control.” 

 The juvenile court then granted the section 388 petition and ordered visits between 

mother and D.H. suspended, finding it was in D.H.’s best interest to do so. The juvenile 

court authorized the Department “discretion for third-party supervised visits, including 

therapeutic supervised visits. [¶] Department to provide notice and any further discovery 

prior to proceedings and that all parties are aware that the visits are resuming and the 

nature of those visits and who’s supervising those visits.” The juvenile court then 

reiterated, “Ten-court-day notice and updated discovery, again, as to visits resuming, 

whose visit, who’s supervising, and the nature of those visits, including notice to the 

[CASA] ....” 

 This appeal followed. 

DISCUSSION 

 Mother contends that the juvenile court abused its discretion by improperly 

delegating authority to the Department to determine whether visitation should occur. We 

disagree. 

 In a dependency case, the juvenile court has the sole power to determine whether 

visitation will occur. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.) 

Apart from the decision to allow for visitation itself, the juvenile court may delegate all 

other aspects of managing the details of the visits to social services. (In re C.C. (2009) 
11. 

172 Cal.App.4th 1481, 1489; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373-1374, 

1376-1377.) In making visitation orders, a juvenile court can properly delegate “the 

ministerial tasks of overseeing the right as defined by the court.... Such matters as time, 

place and manner of visitation do not affect the defined right of a parent to see his or her 

child and thus do not infringe upon the judicial function.” (In re Jennifer G. (1990) 221 

Cal.App.3d 752, 757.) “Only when a visitation order delegates ... the absolute discretion 

to determine whether any visitation occurs does the order violate the statutory scheme 

and separation of powers doctrine.” (In re Moriah T., supra, at p. 1374.) 

 We review a juvenile court’s visitation ruling for an abuse of discretion. (Los 

Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 

Cal.App.4th 692, 699, fn. 6.) 

 In arguing that the juvenile court’s delegation of authority to the Department was 

improper, mother relies on In re Donnovan J. (1997) 58 Cal.App.4th 1474 (Donnovan 

J.). In Donnovan J., at page 1477, the juvenile court ordered that “[f]ather has ‘no 

visitation rights without permission of minors’ therapists.’” The appellate court 

concluded that the order was an improper delegation of judicial power. The court 

reasoned: “[the order] neither requires that the therapists manage visitation ordered by the 

court, nor sets criteria (such as satisfactory progress) to inform the therapists when 

visitation is appropriate. Instead it conditions visitation on the children’s therapists’ sole 

discretion. Under this order, the therapists, not the court, have unlimited discretion to 

decide whether visitation is appropriate. That is an improper delegation of judicial 

power. Although a court may base its determination of the appropriateness of visitation 

on input from therapists, it is the court’s duty to make the actual determination.” (Id. at 

pp. 1477-1478.) 

Donnovan J. is distinguishable. Foremost, unlike Donnovan J., the juvenile court 

here did not give the Department unlimited discretion to decide whether visitation was 

appropriate. (Donnovan J., supra, 58 Cal.App.4th at p. 1477.) Instead, the juvenile court 
12. 

itself suspended further visitation, finding it was in D.H.’s best interests to do so. It then 

gave the Department discretion to permit resumption of third-party supervised visitation 

if and when it was appropriate. By doing so, the juvenile court restricted visitation to 

when the Department, with the help of the therapist and with notice to all parties, 

determined mother and D.H. had progressed to a point where supervised visitation was 

again beneficial. 

 We also note another distinction between Donnovan J. and the case here. In 

Donnovan J. the juvenile court’s delegation was to a private therapist rather than to a 

social services agency. As stated in Donnovan J., “A court’s delegation to a private 

therapist, as in this case, raises additional concerns. Unlike a child protective services 

agency, a private therapist is not statutorily bound to ‘act as a cooperative arm of the 

juvenile court.’ [Citation.] A private therapist is not accountable to the court in the same 

manner as a child protective services agency.” (Donnovan J. supra, 58 Cal.App.4th at p. 

1476.) Here the delegation was to the Department, which was a cooperative arm of the 

juvenile court. 

 Even assuming arguendo that the order delegated too much judicial discretion to 

the Department, we find mother is not prejudiced thereby. Mother does not challenge the 

sufficiency of the evidence supporting the order suspending visitation and, given the 

substantial evidence before it, the juvenile court could have simply suspended mother’s 

visits. “The fact that the juvenile court rejected that course, and instead issued the 

restrictive order challenged now, amounts to a windfall for [mother], not a violation of 

[her] rights.” (In re Chantal S. (1996) 13 Cal.4th 196, 214.) 

DISPOSITION 

 The juvenile court’s order is affirmed.