Filed 12/3/15 In re Marvin A. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re Marvin A., a Person Coming Under 

the Juvenile Court Law.

 B262999

 (Los Angeles County

 Super. Ct. No. CK85110)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

Marvin A., Sr.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. 

Rudolph A. Diaz, Judge. Reversed and remanded with directions.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant 

County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and 

Respondent.

No appearance for Minor.

* * * * * *
2

The sole question on appeal is whether a juvenile court order placing a child with 

a legal guardian and granting the child’s father “[m]onitored visitation as arranged with 

Legal Guardian . . . at least once per month” constitutes an excessive delegation of the 

court’s “‘power to regulate visitation between minors determined to be dependent 

children . . . and their parents . . . .’ [Citation.]” (In re S.H. (2011) 197 Cal.App.4th 

1542, 1557.) We conclude that it is, and reverse.

FACTUAL AND PROCEDURAL HISTORY

In November 2010, the Los Angeles County Department of Children and Family 

Services (Department) filed a petition imploring the juvenile court to exert dependency 

jurisdiction over then-18-month-old Marvin A. and two of his half-siblings. As against 

Marvin A., Sr. (father),

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the court sustained allegations that he was unable to provide 

regular care to Marvin due to his history of substance abuse and criminal behavior and 

his failure to provide Marvin with the necessities of life within the meaning of Welfare 

and Institutions Code section 300, subdivisions (b) and (g).

2

Over the next several years, 

Marvin was placed with his mother, with his maternal grandmother, with his paternal 

aunt and uncle, and finally with his half-sister Jacqueline C. 

After the juvenile court terminated father’s reunification services in September 

2014, the court in March 2015 held a permanency planning hearing under section 366.26. 

Father had not visited Marvin for six months, and did not attend the hearing. However, 

father’s counsel requested weekly visitation rights, while Marvin’s attorney and 

Jacqueline requested monthly visitation. The court terminated dependency jurisdiction 

over Marvin, appointed Jacqueline as Marvin’s legal guardian, and ordered that father 

have “monitored visitation as arranged with [Jacqueline]” “at least once per month.” 

 

1 There were also allegations against mother and the father of the two half-siblings. 

None of these other parties is a party to this appeal.

2 Unless otherwise indicated, all further statutory references are to the Welfare & 

Institutions Code.
3

Father timely appeals. 

DISCUSSION

When a juvenile court places a child under its dependency jurisdiction with a legal 

guardian as part of a permanent plan for that child, the court is also required to “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.” (§ 366.26, subd. (c)(4)(C).) We review visitation orders for an abuse of 

discretion. (In re S.H., supra, 197 Cal.App.4th at pp. 1557-1558.) Father argues that the 

juvenile court abused its discretion in making the visitation order in this case because the 

order specifies only the frequency of visits, but not their duration; in so doing, father 

contends, the court granted Jacqueline the power to limit any visits to mere minutes and 

thus impermissibly granted her the power to determine whether visitation occurs at all.

Because “the power to decide whether any visitation occurs belongs” by virtue of 

section 366.26, subdivision (c)(4)(C) “to the [juvenile] court alone” (In re S.H. (2003) 

111 Cal.App.4th 310, 317), there are limits on what a juvenile court may delegate to 

others when it comes to visitation. A juvenile court may permissibly delegate “the 

ministerial tasks of overseeing the [visitation] right as defined by the court” (In re 

Jennifer G. (1990) 221 Cal.App.3d 752, 757 (Jennifer G.)), and thus may permit others—

social workers, guardians, or therapists—to manage the “actual details of the visits, 

including . . . determin[ing] the time, place and manner in which visits should occur.” (In 

re S.H., 111 Cal.App.4th at p. 317; In re M.R. (2005) 132 Cal.App.4th 269, 274 (M.R.); 

In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1164, superseded on other grounds by 

§ 366.26, subds. (c)(4)(A) & (c)(4)(B) (Randalynne G.); In re Moriah T. (1994) 23 

Cal.App.4th 1367, 1374 (Moriah T.); In re Christopher H. (1996) 50 Cal.App.4th 1001, 

1008-1009 (Christopher H.).) However, if the court’s visitation order—either expressly 

or in effect—grants a third party the power to control “whether any visitation will occur” 

at all, such a grant renders the court’s visitation order “illusory”; in such instances, the 
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court has impermissibly “abdicated” its statutory duty to fix visitation. (In re S.H., 111 

Cal.App.4th at pp. 317-319; In re Julie M. (1999) 69 Cal.App.4th 41, 48-49 (Julie M.).) 

The line between permissible delegation and impermissible abdication depends in 

part upon the identity of the delegate. A juvenile court has broader discretion when 

delegating visitation details to social workers because they are obligated to “act[] as an 

arm of the court in the best interests of the minor” (In re Danielle W. (1989) 207 

Cal.App.3d 1227, 1234 (Danielle W.)) and are also more “accountable to the court.” 

(Randalynne G., supra, 97 Cal.App.4th at p. 1166.) Thus, while a juvenile court cannot 

leave it entirely to the Department to decide whether visitation will occur (Jennifer G.,

supra, 221 Cal.App.3d at pp. 755-757; Danielle W., at p. 1237 [“a visitation order 

granting the Department complete and total discretion to determine whether or not 

visitation occurs would be invalid”]; but see id. at pp. 1236-1237 [upholding order 

leaving “[v]istation . . . at [the Department’s] discretion . . .”]), it may leave it to the 

Department to ensure “regular[]” visits (Moriah T., supra, 23 Cal.App.4th at pp. 1371, 

1375-1377) or “reasonable visits” (Christopher H., supra, 50 Cal.App.4th at pp. 1008-

1010). 

A juvenile court’s power to delegate to private parties—be they legal guardians, 

therapists, or dependent children—is far more limited. As a general matter, the court’s 

order in such circumstances must generally fix both the frequency and duration of the 

visits; only the remaining details may be delegated. (See M.R., supra, 132 Cal.App.4th at 

pp. 272-274 [impermissible to leave visitation to the “legal guardians at their 

discretion”]; Randalynne G., supra, 97 Cal.App.4th at p. 1163 [impermissible to leave 

“visitation . . . as directed by the legal guardian”]; In re Rebecca S. (2010) 181 

Cal.App.4th 1310, 1314 (Rebecca S.) [impermissible to leave “(d)uration, frequency and 

location (of visitation)” to the legal guardian]; In re Donnovan J. (1997) 58 Cal.App.4th 

1474, 1476 [impermissible to delegate visitation to therapist]); In re S.H., supra, 111 

Cal.App.4th at pp. 313, 318-319 [impermissible to give children “veto power” over 

visitation]; Julie M., supra, 69 Cal.App.4th at pp. 48-49 [same]; cf. In re Grace C. (2010) 
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190 Cal.App.4th 1470, 1477-1479 [permissible to leave guardian discretion to expand 

visits, following a detailed initial visitation order].)

Under this precedent, the juvenile court’s visitation order in this case falls on the 

impermissible abdication side of the line. The order sets a minimum frequency of “at 

least once per month,” but leaves it entirely to Jacqueline, Marvin’s legal guardian, to 

“arrange[]” the minimum duration of that visit and all other details. Under the order’s 

plain language, Jacqueline has the power to “arrange” for each monthly visit to last two 

minutes, thereby rendering the juvenile court’s visitation order illusory. This is not a case 

where we can look to a history of visitation as a baseline; if anything, the record reveals a 

degree of acrimony between Jacqueline and father. What is more, Jacqueline is a private 

party under no special duty of good faith to the juvenile court.

The Department offers three arguments in defense of the juvenile court’s visitation 

order—one substantive, and two procedural. Substantively, the Department contends that 

any possibility that Jacqueline might misuse her discretion is, at this point in time, wholly 

speculative. But, as the above cases striking down visitation orders indicate, the validity 

of the juvenile court’s visitation order turns on whether the order constitutes an improper 

delegation in the first place, not whether that delegation might later be abused. 

Procedurally, the Department asserts that we need not reach this issue. The 

Department observes that father never objected to the visitation order before the juvenile 

court, but the question of overbroad delegation is largely a question of law resting on 

undisputed facts; further, it is a question that appellate courts have many times reviewed 

for the first time on appeal. (E.g., Rebecca S., supra, 181 Cal.App.4th at p. 1313; M.R., 

supra, 132 Cal.App.4th at p. 272.) Relatedly, the Department notes that there is no need 

to reach this issue now because father can seek to redress any future denial of visitation 

rights by Jacqueline through the juvenile court’s continuing jurisdiction over the 

guardianship. (§ 366.4, subd. (a); In re Twighla T. (1992) 4 Cal.App.4th 799, 806.) 

However, for the reasons explained above, father’s power to seek redress in the future 

does not alter the fact that the court’s visitation order is presently invalid. 
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DISPOSITION

The visitation order is reversed, and the case remanded with directions to specify 

both the frequency and duration of father’s visits.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________

HOFFSTADT, J. 

We concur:

_____________________

BOREN, P. J.

_____________________

ASHMANN-GERST, J.