Filed 7/29/21 In re D.W. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.W. et al., Person s Coming Under the Juvenile Court Law.

SAN D IEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,

v. B.G.,
Defendant and Appellant. D078740

(Super. Ct. No s . J519399 A

- B )

APPEAL from orders of the Superior Court of San Diego County, Rohanee Zapanta, Judge. Dismissed in part , reversed in part , and remanded
with instructions

. Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Eliza Molk, Deputy Cou nty Counsel, for Plaintiff and Respondent.2

B.G. (Mother) appeals the juvenile court’s order issued at the contested hearing on March 11, 2021 under Welfare and Institutions Code 1 section
366.26 , establishing a legal guardianship for her son, T.L

. Mothe r’s other

son, D.W ., was also before the juvenile court on March 11, 2021 , for a contested family maintenance review hearing under section 364 , and the juvenile court ordered that D.W. remain in the care of T.W. (Father)

. 2 In her opening brief, Mother’s s ole challenge is to the juvenile court’s visitation
order issued pursuant to T.L.’s legal guardianship. S he contends that the juvenile court improperly authorized T.L .’s legal guardian to determine the frequency and duration of Mother’s visitation with T. L. , and requests a remand with instructions that the juvenile court issue an order specifying
both the frequency and duration of Mother’s visits

. In a letter brief , the San Diego County Health and Human Services Agency (the Agency) concede s that the juv enile court erred in leaving it to the legal guardian to determine the frequency and duration of Mother’s visitation
with T.L. Mother and the Agency have filed a joint stipulation for the
immediate issuance of a remittitur as to both childre n

. (Cal. Rule s of Court, rule 8.272(c)(1).) The parties acknowledge that Mother has not raise d any challenge to the juvenile court’s order as to D.W. , and they anticipate that Mother’s appeal as to D.W. will be dismissed

. As to T.L. , the parties set forth their agree ment to a limited remand with instructions to the juvenile court to specify the frequency and duration of Mother’s visitation with T.L. under the legal guardianship

.

1 Undesignated statutory ref erences are to the Welfare and Institutions Code.

2 Father is not a party to this appeal.3

We accept the Agency’s letter brief in lieu of a formal respondent’s brief
and consider the matter to be fully briefed. (Cal. Rules of Court, rule 8.200(a)(2).) For the reasons stated post , w e accept the parties’ stipulation , dismiss the appeal as to the order issued in D.W

. ’s case , reverse the visitation
order in T.L .’s case , and remand w ith instructions that the juvenile court specify the frequency and duration of T.L .’s visitation

.

FACTUAL AND PROCEDURAL BACKGROUND In 2016, T.L. and D.W. were declared dependents of the juvenile court
due to domestic violence in the home. Both childre n were removed from Mother’s custody and reunification services were ordered for Mother. During the reunification period, Mother’s visitation with the children was inconsistent, she was not compliant with her case plan requirements, she did not participat e in her court ordered services, and she had several arrests. In 2017, the juvenile court terminated Mother’s reunification services and formally placed T.L. with the caregiver who would eventually become his legal guardian. No issues were reported durin g T.L.’s placement

. A lthough
the caregiver was unwilling to adopt T.L., she was willing to provide T.L. with the permanency of a legal guardianship. Meanwhile , D.W. was placed
in Father ’s care under a plan of family maintenance.
At the contested secti on 366.26 hearing on March 11 , 2021 , the Agency recommended that the juvenile court appoint T.L.’s current caregiver as his legal guardian and terminate dependency jurisdiction. The parties , including Mother, submitted on this recommendation. Mother’s co unsel asserted that although Mother would like to have both children in her care, she did not want to disrupt T.L.’s placement with the legal guardian. Regarding visitation, Mother’s counsel stated that the presumption was for the legal guardian to expand Mother’s visitation to unsupervised visits once the4

juvenile court terminated jurisdiction over T.L. and closed his case. 3 T.L.’s counsel conveyed to the juvenile court that although T.L. wanted to be placed with Mother, he understood why the legal guard ianship was the best placement for him. After hearing the parties’ statements and reviewing the Agency’s reports, the juvenile court found that T.L. was adoptable, but that an exception existed under section 366.26, subdivision (c)(1) that made
terminat ion of parental rights detrimental to T.L

. The juvenile court ordered a permanent plan of legal guardianship for T.L. and appointed the caregiver as his legal guardian. Regarding visitation, the juvenile court ordered reasonable, supervised visits for Mo ther with T.L., with the legal guardian to determine the time, place, frequency, and duration of the visits. The court then terminated jurisdiction over T.L. At the same hearing, the juvenile court ordered D.W. to remain in Father’s care under a family maintenance plan. Mother timely appealed. DISCUSSION The parties’ stipulation sets forth their agreement to the following : 1) dismissal of Mother’s appeal as to the order in D.W.’s case; and 2) reversal of
the visitation order in T.L.’s case and re mand with instructions that the juvenile court specify the frequency and duration of Mother’s visitation with

3 Contrary to the Agency’s suggestion, Mother’s counsel did not affirmatively request that all decisions over T.L.’s visitation be entrusted to the legal guardi an. Further, even if Mother forfeited her ability to challenge the visitation order by failing to raise it in the juvenile court, the Agency submits that this c ourt should exercise its discretion and consider Mother’s challenge to the visitation order.5

T.L. under the legal guardianship. Based on our independent review of the record, we accept the stipulation

. 1. Mother’s Appeal of the Order i n D.W.’s Case Should Be Dismissed Mother’s notice of appeal stated that she was appealing, in part, the juvenile court’s order entered on March 11, 2021 regarding D.W

. However, in her opening brief

, Mother does not raise any challenge to the order as to D.W

. Mother acknowledges this in the s tipulation , and the parties state their expectation that Mother’s appeal as to D.W. will be dismissed

. Accordingly, we accept the s tipulation as to D.W. and dismiss this portion of the appeal. ( In re Sade C. (1996) 13 Cal.4th 952, 994 [appellate court may deem an appeal abandoned and dismiss it based on appellant’s failure raise a claim of reversible error].)
2. The Juvenile Court’s Visitation Order as to T.L. Improperly Left I t to the Legal Guardian to Determine the Frequency and Duration of Mother’s Visitation with T.L.
Although the juvenile court may vest a child’s legal guardian with the discretion to decide the time, place, and manner of visitation between a child and a parent pursuant to the legal guardia nship, the juvenile court must, at a minimum, specify the frequency and duration of the visits. ( In re M.R. (2005) 132 Cal.App.4th 269, 274 ( M.R. ) .) The juvenile court in this case , however, expressly delegated the determination of the frequency and
dura tion of Mother’s visitation with T.L. to T.L.’s legal guardian: “I do order the parents have reasonable supervised visitation with the guardian [ ] to determine the time, place, frequency and duration of such visits.” This order effectively allows the leg al guardian to decide whether visitation will occur, and constitutes an abuse of discretion by the juvenile court

. (See In re Ethan
J. (2015) 236 Cal.App.4th 654, 660

– 661; In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314; M.R. a t p. 274. ) The parties s tipulate to a reversal6

on this basis and request a remand to the juvenile court to craft an order specifying the frequency and duration of Mother’s visits with T.L

. A stipulated reversal under Code of Civil Procedure section 128, subdivision (a)(8) is p ermissible in a juvenile dependency case when the stipulated reversal will not adversely affect the rights of any nonparty or the public, and the reasons for requesting reversal outweigh the erosion of public trust that may result from nullification of a j udgment . ( In re Rashad H. (2000) 78 Cal.App.4th 376, 379

– 382 ( Rashad H. ) .) The court also considers
whether the s tipulated reversal will reduce the incentive for pretrial
settlement. ( Ibid .) Applying those factors, we accept the parties’ stipulation for reversal

. First, there is no reasonable possibility that the interests of nonparties to the stipulation or the public will be adversely affected by reversal of the judgment in this case. In fact , T.L.’s best interests will be advanced by reversal of the visitation order. In 2005, the Legislature amended section 366.26, subdivision (c)(4)(C) to instruct the juvenile court s to make visitation orders when a child is ordered into a permanent plan of legal guardianship , absent a finding that visitation wo uld be detrimental

. (See M.R. , supra , 132 Cal.App.4th at p. 274 [juvenile court is required to make a visitation order
under § 366.26, subd. (c)(4)(C) unless it f inds that visitation is not in the child’s best interest s ]

. ) Because there is no detriment f inding regarding visitation in this case, it is presumed that visitation between Mother and T.L. is in T.L’s best interest s. A reversal of the juvenile court’s order will permit
that court to set minimum parameters for visitation to ensure that visitation
will occur

. Further, the parties agree, and we concur, that the juvenile court’s visitation order erroneously delegated to T.L.’s legal guardian the authority7

to decide the frequency and duration of visitation

. When such reversible

error is presented on appeal , a stipulated reversal advances the public trust by assuring the public that the courts and parties will promptly and reasonably act to address situations in which reversal is necessary. (See
Rashad H. , supra , 78 Cal.App.4th at pp. 381

– 382.) F inally , pretrial
settlement is not an issue in this case. For these reasons, we accept the parties’ stipulation for reversal of the visitation order as to T.L

. DISPOSITION Mother’s appeal of the March 11 , 2021 order in D.W.’s case is
dismissed. The Mar ch 11 , 2021 visitation order in T.L ’s case is reversed and remanded to the juvenile court with instructions to hold a new hearing on the issue of Mother’s visitation. On remand, the juvenile court is instructed to
make a new visitation order that specifie s the frequency and duration of the
visits between Mother and T.L. The clerk is directed to issue a remittitur forthwith. ( Cal. Rules of Court, rule 8.272(c)(1) .)

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

DO, J.