Filed 9/19/16
                        CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                    DIVISION FOUR


In re KORBIN Z.,                                      B269429

a Person Coming Under the Juvenile Court Law.         (Los Angeles County
                                                       Super. Ct. No. DK03434)

LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

        Plaintiff and Respondent,

        v.

MICHAEL W.,

        Defendant and Appellant.



        APPEAL from an order of the Superior Court of Los Angeles County,
Michael Miller, Commissioner. Affirmed in part, reversed in part, and remanded.
        Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant
and Appellant.
        No appearance for Plaintiff and Respondent.
        Linda B. Puertas, under appointment by the Court of Appeal, for minor.
       Michael W. (Father) appeals from an order of the juvenile court on his
                                                              1
petition under Welfare and Institutions Code section 388 giving his minor son,
Korbin Z. (Korbin), sole discretion whether Father will have visits with him.
                                           2
Korbin (the sole respondent on appeal) contends that Father had no right to
visitation under the circumstances of this case, and that therefore it was not
improper to delegate to Korbin the decision whether he will visit with Father.
       As we explain below, we conclude that where, as here, the court has not
ordered reunification services because, under section 361.5, subdivisions (b)(1)
and (d), the parent’s whereabouts were unknown for more than six months after the
child’s out-of home placement, the parent has no right to visitation. Nonetheless,
the court may order visitation in the exercise of its discretion under section 362,
subdivision (a), on a finding that such visitation will serve and protect the child’s
best interests. But, as is the rule when visitation is ordered as part of a
reunification plan, the court cannot give the child sole discretion to determine
whether such visitation will occur. Rather, once the court determines that
visitation is in the child’s best interests, the court must, as part of its duty to protect
and serve those interests, ensure that such visitation occurs under terms set by the
court. Otherwise, by placing sole discretion whether visitation will occur in the
hands of the child, the court will have ceded to the child the determination whether
visitation is in the child’s best interests. Therefore, we reverse the order regarding
Father’s visitation, and remand for the court to reconsider whether to order
visitation, and if so, to set the terms of that visitation.

1
       Unspecified statutory references are to the Welfare and Institutions Code.
2
       The Los Angeles Department of Children and Family Services takes no position in
this appeal and therefore did not file a brief.

                                               2
              FACTUAL AND PROCEDURAL BACKGROUND
      In October 2013, Korbin (born Oct. 2004) lived with his mother, K.T.
                                                                                   3
(Mother), his half-sister (born Jan. 2010), and Mother’s male companion, Rene A.
On December 4, 2013, the Los Angeles County Department of Children and
Family Services (DCFS or agency) filed a section 300 petition on behalf of Korbin
and his half-sister, asserting jurisdiction under section 300, subdivisions (a)
(serious physical harm) and (b) (failure to protect). Father’s whereabouts were
unknown.
      The section 300 petition alleged that Mother and Rene engaged in a violent
confrontation in the children’s presence; Mother and maternal grandmother
engaged in a violent confrontation in the children’s presence; Mother had mental
and emotional problems and failed to take her psychotropic medication; and
Mother was a current abuser of marijuana and alcohol.
      Mother and Korbin had not had contact with Father since Korbin was three
weeks old. According to Mother, Father had made no efforts to contact her or
Korbin since then. Mother told the caseworker that she had obtained a temporary
restraining order against Father because of domestic violence.
      Father was not present at the December 4, 2013 detention hearing. He was
deemed to be Korbin’s presumed father and was granted reunification services and,
if he contacted DCFS, monitored visits. The juvenile court found a prima facie
case was established for detaining Korbin and ordered him detained with his
maternal aunt.
      In February 2014, DCFS filed a declaration of due diligence, indicating that
the agency had searched numerous sources, including prison, military, voter

3
      Half-sister and Mother are not parties to this appeal.

                                            3
registration, Department of Motor Vehicles, and Lexis/Nexis records, and found
seven addresses for Father. (See § 361.5, subd. (b)(1) [a finding that a parent is
whereabouts unknown shall be supported by an affidavit showing “a reasonably
diligent search” was performed].) The agency mailed certified notices to all seven
addresses.
       At the February 19, 2014 jurisdiction/disposition hearing, the juvenile court
found that due diligence as to Father’s whereabouts had been completed. The
court found that Father was Korbin’s legal father and vacated the prior finding of
presumed father status. The court declared Korbin a dependent of the court under
section 300, subdivision (b), based on the allegation that Mother’s mental and
emotional problems rendered her unable to care for the children. The court
dismissed the other allegations in the interest of justice. The court did not order
reunification services for Father but ordered monitored visits once he contacted the
                 4
court or DCFS.
       At the six-month review hearing in August 2014, the court found that
Mother was not in compliance with her case plan. At the 12-month review hearing
in February 2015, the court terminated reunification services for Mother and
scheduled a section 366.26 hearing for permanent placement. (See § 366.21, subd.
(g)(4) [if court does not return child to parent at 12-month hearing, court may order
section 366.26 hearing].)
       In July 2015, DCFS mailed notice to Father about the section 366.26 hearing
on selection of a permanent plan for Korbin. Father contacted DCFS and said that
he had been trying to contact the agency for a month. He had not seen Korbin for

4
        Father was not entitled to reunification services under section 361.5, subdivision
(b)(1), which states that services need not be provided if the court finds that the parent’s
whereabouts are unknown.

                                              4
nine years, but he expressed willingness to have Korbin placed with him. The
section 366.26 report stated that Korbin missed Mother and wanted to live with
her, but he did not wish to have visits with Father.
      Father appeared at the August 2015 section 366.26 hearing. The court
continued the hearing and denied Father’s request for DNA testing.
      Father filed a section 388 petition in October 2015, asking the court to set
aside its February 2014 finding that DCFS issued proper notice to him and to order
that Korbin be released to his custody. He argued that DCFS should have found
his address because he had “maintained a current address with child support.” He
further argued that the requested order would be better for Korbin because it would
provide him with “the love and stability a child deserves.”
      The court held a hearing on October 28, 2015, and denied Father’s section
388 petition. The court found that the agency exercised due diligence, noting that
Father’s address on his driver’s license still was not correct at the time of the
section 388 hearing. The court further concluded that Father had not met his
burden of showing that changing the prior order would be in Korbin’s best
interests, citing the following reasons: Korbin’s desire to remain with his maternal
aunt and uncle, whom he considered to be his family; Father’s lack of a
relationship with Korbin, due in part to the restraining order against him for three
years; and Korbin’s age. (See In re A.A. (2012) 203 Cal.App.4th 597, 611 [under
section 388, the parent has the burden of establishing “by a preponderance of the
evidence that (1) new evidence or changed circumstances exist, and (2) the
proposed change would promote the best interests of the child”].)
      The court concluded that changing the prior order would be too disruptive
for Korbin but expressed the opinion that as Korbin matured, he might want a
relationship with Father. Mother objected to any visits, stating that Father had

                                           5
burned her other child with cigarettes and beaten her while she was pregnant.
Counsel for Korbin also stated that Korbin did not want any visits with Father.
The court expressed the desire to allow monitored visits in the future in case
Korbin changed his mind but explained that the decision to have any visits would
be Korbin’s. The court thus ordered DCFS to facilitate monitored visits with
Korbin and Father in a therapeutic setting at Korbin’s discretion. The court found
that the permanent plan of legal guardianship was appropriate and continued the
section 366.26 hearing. Father appealed.


                                    DISCUSSION
      Father contends that the juvenile court erred in giving Korbin sole discretion
over Father’s visitation. We agree. Although the court was not required to order
visits for Father, once it did so, it could not delegate the decision whether visitation
would occur to Korbin. Rather, the court had the continuing obligation to
supervise any such visitation and determine the terms under which visitation would
occur. We therefore reverse the visitation order and remand for the court to
reconsider whether to order visitation, and if so, the terms of the visitation.
      Case law consistently holds that the juvenile court cannot delegate the
decision whether visitation will occur to any third party, including the child, the
social services agency, or the guardian. (See, e.g., In re Ethan J. (2015) 236
Cal.App.4th 654, 656 (Ethan J.) [juvenile court may not terminate dependency
jurisdiction knowing that child refused to participate in visitation]; In re T.H.
(2010) 190 Cal.App.4th 1119, 1123 (T.H.) [“The power to determine the right and
extent of visitation by a noncustodial parent in a dependency case resides with the
court and may not be delegated to nonjudicial officials or private parties.
[Citation.]”]; In re Kyle E. (2010) 185 Cal.App.4th 1130, 1136 [juvenile court

                                           6
improperly delegated authority to department of health and human services
regarding whether visitation would occur]; In re Hunter S. (2006) 142 Cal.App.4th
1497, 1505 (Hunter S.) [juvenile court erred in failing to enforce visitation order
where child refused any contact with his mother]; In re S.H. (2003) 111
Cal.App.4th 310, 319 [“In no event . . . may the child’s wishes be the sole factor in
determining whether any visitation takes place . . . .”]; In re Julie M. (1999) 69
Cal.App.4th 41, 48-49 [juvenile court abused its discretion in giving children
“absolute discretion” to decide whether mother could visit them because this order
“essentially delegated judicial power to the children”].) “A visitation order may
delegate to a third party the responsibility for managing the details of visits,
including their time, place and manner. [Citation.] That said, ‘the ultimate
supervision and control over this discretion must remain with the court . . . .’
[Citation.]” (T.H., supra, 190 Cal.App.4th at p. 1123.) The juvenile court
“improperly delegate[s] its authority and violate[s] the separation of powers
doctrine” if it “delegates the discretion to determine whether any visitation will
occur” to a third party. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009.)
      Korbin notes that these decisions limiting a juvenile court’s authority to
delegate visitation arise under circumstances where the parent has the right to visit
the child as part of a reunification plan. Here, however, Father had no right to
visitation. Therefore, Korbin argues, these decisions do not apply to Father’s case.
      It is true that Father had no right to visitation. At the February 2014 hearing,
the court found that DCFS had established due diligence as to Father. Once that
finding was made, Father was not entitled to reunification services, and the court
ordered that he be offered no reunification services. (See § 361.5, subd. (b)
[“Reunification services need not be provided to a parent or guardian . . . when the
court finds, by clear and convincing evidence . . . [¶] . . . [t]hat the whereabouts of

                                           7
the parent or guardian is unknown. . . .”].) Although “[v]isitation is an essential
part of a reunification plan,” it “is not integral to the overall plan when the parent is
not participating in the reunification efforts.” (In re J.N. (2006) 138 Cal.App.4th
450, 458-459 (J.N.); see also In re D.B. (2013) 217 Cal.App.4th 1080, 1090 [the
court’s discretion over visitation is less constrained after reunification services are
terminated, when the focus is “on permanency and stability for the child”].)
       Had Father’s whereabouts become known within six months of Korbin’s
out-of-home placement, Father would have been entitled to reunification services.
(See § 361.5, subd. (d) [“If reunification services are not ordered pursuant to
paragraph (1) of subdivision (b) and the whereabouts of a parent become known
within six months of the out-of-home placement of the child, the court shall order
the social worker to provide family reunification services in accordance with this
subdivision.”].) But Father’s whereabouts did not become known until he
appeared in court in August 2015, 20 months after Korbin was removed from
Mother’s custody in December 2013.
       Thus, because section 361.5, subdivision (d) did not apply, Father was not
entitled to reunification services. And because he was not entitled to reunification
services, he had no right to visitation. Nonetheless, no statute precluded the court
from ordering visitation even though, under section 361.5, subdivision (b)(1), the
                                              5
court did not order reunification services. Further, section 362, subdivision (a)


5
        We note that section 361.5, subdivision (f) provides, in substance, that when the
court does not order reunification services under subdivisions (b)(2) through (b)(16) or
subdivision (e)(1), it “may,” pending the section 366.26 hearing, “continue to permit the
parent to visit the child unless it finds that visitation would be detrimental to the child.”
(§ 361.5, subd. (f).) These listed subdivisions concern circumstances where no
reunification services are ordered for reasons such as mental disability, death of another
child, sexual abuse, severe physical harm, and conviction of a violent felony. They do
not include the situation here, where no reunification services were ordered under
                                                 8
provides: “If a child is adjudged a dependent child of the court on the ground that
the child is a person described by Section 300, the court may make any and all
reasonable orders for the care, supervision, custody, conduct, maintenance, and
support of the child, including medical treatment, subject to further order of the
court.” This provision grants “‘broad discretion to determine what would best
serve and protect the child’s interest and to fashion a dispositional order in
accordance with this discretion. [Citations.]’” (In re Corrine W. (2009) 45 Cal.4th
522, 532; see also § 362, subd. (d) [“The juvenile court may direct any reasonable
orders to the parents or guardians of the child who is the subject of any
proceedings under this chapter as the court deems necessary and proper to carry
out this section . . . .”].) Given this broad discretion, upon a finding that visitation
would serve and protect Korbin’s interests, we conclude that the court had the
authority to order visitation.
       But we also conclude that, having made the decision to order visitation, the
court had the obligation to supervise that visitation, and could not delegate to
Korbin the authority to determine whether such visitation would occur at all.
Rather, the standard rule precluding the delegation of sole authority over visitation
to the minor applies: “If the juvenile court orders visitation, ‘it must also ensure
that at least some visitation, at a minimum level determined by the court itself, will
in fact occur.’ [Citation.] When the court abdicates its discretion and permits a
third party, including the dependent child, to determine whether any visitation will
occur, the court impermissibly delegates its authority over visitation and abuses its
discretion. [Citation.]” (Ethan J., supra, 236 Cal.App.4th at p. 661; see In re


subdivision (b)(1) of section 361.5, because Father’s whereabouts were unknown.
Nonetheless, while section 361.5, subdivision (f) does not specifically authorize the court
to order visitation when no reunification services are ordered under subdivision (b)(1), it
also does not preclude such an order.
                                             9
Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 [“[V]isitation may not be dictated
solely by the child involved although the child’s desires may be a dominant
factor”]; Hunter S., supra, 142 Cal.App.4th at p. 1505 [“In no case may a child be
allowed to control whether visitation occurs.”].)
      Any other rule would cede to Korbin the court’s duty under section 362,
subdivision (a) to determine what is in Korbin’s best interests. In other words,
under the circumstances present here, where under section 361.5, subdivisions
(b)(1) and (d) reunification services have not been ordered, the court may order
parental visitation in the exercise of its discretion under section 362, subdivision
(a), on a finding that such visitation will serve and protect the minor’s interests.
But the court must set the parameters of such visitation. It cannot place in the
minor’s hands the sole discretion to determine whether such visitation, which the
court has determined is in the child’s best interests, will occur at all.
      Thus, we conclude that the court improperly delegated authority to Korbin to
decide whether visits with Father would occur. We reverse that portion of the
October 2015 order regarding Father’s visitation and remand for further
proceedings. On remand, in light of Korbin’s opposition to visits with Father, the
court may reconsider whether the visits are in Korbin’s best interests. (See Hunter
S., supra, 142 Cal.App.4th at p. 1508 [“In conducting a new section 388 hearing,
given the passage of time and the consistent intensity of Hunter’s resistance, it may
be appropriate for the juvenile court to further consider if, under the circumstances
and in light of current information, visits would be detrimental to Hunter”]; J.N.,
supra, 138 Cal.App.4th at p. 459 [no abuse of discretion in court’s finding that
contact with the mother would not be in the child’s best interest where the mother
had “not seen him for nine years,” and it was reasonable to infer there was not a
strong relationship between them].) If the court nonetheless orders visitation, it

                                           10
must set the terms of such visitation, mindful of the rule that “[a] visitation order
may delegate to a third party the responsibility for managing the details of visits,
including their time, place and manner. [Citation.] That said, ‘the ultimate
supervision and control over this discretion must remain with the court . . . .’
[Citation.]” (T.H., supra, 190 Cal.App.4th at p. 1123.)


                                   DISPOSITION
             The portion of the October 28, 2015 order regarding Father’s
visitation is reversed. The matter is remanded for the juvenile court to reconsider
whether to order visitation, and if so, the terms of such visitation. In all other
respects the order is affirmed.
             CERTIFIED FOR PUBLICATION




                                                WILLHITE, Acting P. J.




             We concur:




             MANELLA, J.




             COLLINS, J.

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