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Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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IV. Issues Arising From the Dispositional Hearing.

A.  Are issues from the dispositional hearing appealable?.

B.  Did the court conduct the dispositional hearing within the proper time frame?.

C. Did the court abuse its discretion in denying the parents' request for a continuance?.

D. Did the court employ the proper burden of proof?.

E. Are there issues arising out of the social study?.

F. Issues arising from the different dispositions when the court had declared a child a dependent of the court.

G. Family Maintenance services (when the court orders that a parent retain custody subject to social worker's supervision). (Welf. & Inst. Code, § 362, subd. (b); Cal. Rules of Court, rule 1456(a)(5).)

H. Reunification services.

  1. When is the court required to provide reunification services to the parent?.
  2. Did the court improperly deny or grant reunification services to a particular party?.
  3. Did the plan contain the required elements?.
  4. Are challenges to the case plan waived?.
  5. Does one parent have standing to object to inadequate services provided to another parent?.
  6. Services to an incarcerated parent.
  7. When may a parent be denied reunification services (i.e., "bypass")?.
  8. What is the standard the juvenile court uses to deny services?.
  9. What is the standard to review the decision to bypass services?.
  10. Can the issue of whether the parent should have received services be waived?.

I.  Are there issues arising out of the court's visitation orders or lack thereof?.

J.  What happens at the end of the dispositional hearing?.

IV.  Issues Arising From the Dispositional Hearing.

  1. Are issues from the dispositional hearing appealable?
    1. Yes. (Welf. & Inst. Code, § 395.)
    2. No, if the court does not order reunification services and then sets a 366.26 hearing. (Rules of Court, rule 39.1B.) Only writ review is available at that point. If the court does not properly notify the parents of the requirement of filing the writ, issues may be raised in an appeal from the 366.26 hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716, 719‑724.)
  2. Did the court conduct the dispositional hearing within the proper time frame?
    1. The dispositional hearing must be concluded 60 days after detention. (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196.)
  3. Did the court abuse its discretion in denying the parents' request for a continuance?
    1. Any party can ask for a continuance on a showing of good cause. (Welf. & Inst. Code, § 352.)
    2. But, continuances are disfavored. (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 193.)
    3. The court is not divested of jurisdiction when the hearing is continued beyond the specified time limits, as long as the continuance was not contrary to the interests of the minor. (In re Richard H. (1991) 234 Cal.App.3d 1351, 1362.)
  4. Did the court employ the proper burden of proof?
    1. When removing the child from the parents' custody, the court's decision must be supported by clear and convincing evidence. (Welf. & Inst. Code, § 361, subd. (c); In re Marilyn H. (1993) 5 Cal.4th 295, 308.)
    2. When denying family reunification, the court's decision must be supported by clear and convincing evidence. (Welf. & Inst. Code, § 361.5, subd. (b); In re Angelique C. (2003) 113 Cal.App.4th 509, 519.)
    3. Clear and convincing evidence is a "high probability" and requires that the "evidence be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind." (In re Angelia P. (1981) 28 Cal.3d 908, 919.)
  5. Are there issues arising out of the social study?
    1. Did the social study contain the required elements?
      1. The social study for disposition must contain "all matters relevant to disposition, and a recommendation for disposition." (Cal. Rules of Court, rule 1455(a).)
      2. The social study must contain the following elements: (1) the social worker's consideration of CPS as a possible solution; (2) any plans for return of child to parent and any plans for achieving legal permanence if reunification fails; (3) whether the child's best interests will be served by grandparent visitation; (4) whether the child has siblings [there is great elaboration of this in Welf. & Inst. Code, § 358.1, subd. (d)]; (5) whether the parent cannot for some reason participate in making educational decision for the child; (6) whether the child appears to be one who is eligible to be considered for further court action to free the child from parental control; (7) whether the parent has been advised of the option to participate in adoption planning and voluntary relinquishment; and (8) the appropriateness of placing the child with a relative. (Welf. & Inst. Code, § 358.1.)
    2. Was there hearsay in the social study?
      1. Hearsay in the social study is admissible. (In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1571.)
      2. The author of the social study does not have to be present in order to introduce the study into evidence. (In re Corey A. (1991) 227 Cal.App.3d 339, 347.)
      3. Was the appellant denied the opportunity to cross-examine the social worker or hearsay declarant?
        1. The parent or child has a due process right to cross‑examine persons whose evidence is compiled within a social study and received in evidence, and may subpoena them to ensure their presence. (In re Corey A. (1991) 227 Cal.App.3d 339, 348.)
       
  6. Issues arising from the different dispositions when the court had declared a child a dependent of the court.
    1. Was the removal of the child from the parents' home proper?
      1. Did the court make the required statutory findings before removing the child? (Welf. & Inst. Code, § 361, subd. (c)(1).)
        1. By clear and convincing evidence, the court must find both (1) substantial danger to the child's physical health, safety, protection, or physical or emotional well-being; and (2) the child's health or well-being cannot be protected without removing the minor. (Welf. & Inst. Code, § 361, subd. (c)(1).)
          1. There must be substantial evidence of both of these prongs to remove the child, or else the order will be reversed. (In re Jasmine G. (2000) 82 Cal.App.4th 282, 285.)
          2. As to the substantial danger finding:
            1. The danger need not be imminent (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136), but there must be a threat of actual harm (In re Jasmine G. (2000) 82 Cal.App.4th 282, 289).
            2. A messy house is insufficient to show danger (In re Paul E. (1995) 39 Cal.App.4th 996, 1000), but an unsafe house, injuries to the child, and non-constructive behavior of parents is sufficient (In re Richard H. (1991) 234 Cal.App.3d 1351)
            3. A parent's mental health is insufficient to show danger (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1079), but a parent's developmental delays that require continuous assistance is sufficient (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136)
          3. Did the juvenile court remove the child based on "completely new" conduct or circumstances such that due process required that the department file a supplemental or "subsequent" petition? (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1182‑1183.)
      2. Did the court remove the child and then improperly place the child back with the same parent? (In re Damonte A. (1997) 57 Cal.App.4th 894, 899 [the removal order was invalid because when removal was ordered, the minors must be placed in an appropriate home other than that of the parent who had custody at the time the petition was filed].)
       
    2. Should the child have been placed with the non-custodial parent?
      1. After removing the child, did the court first determine whether there was a parent with whom the child was not residing who desired custody, and that such placement would not be detrimental to the child? (Welf. & Inst. Code, § 361.2, subd. (a).)
        1. Findings of detriment could not be implied where the court did not consider the correct code section in denying the non-custodial parent placement and there was insufficient evidence of detriment. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.)
        2. How do findings of detriment relate to sibling relationships?
          1. The court may properly consider sibling relationships as a factor when determining detriment to the child in placing child with the non-offending, non-custodial parent. (In re Luke M. (2003) 107 Cal.App.4th 1412.) There, the court's decision to place the children with an in-state aunt and uncle to preserve sibling bonds, over placing them with the non-custodial parent was upheld, as the court could choose siblings bonds over parental bonds.
    3. Should the child have been placed with a relative?
      1. Did the court give the requisite preferential considerations to a request of a child's relative for placement of the child? (Welf. & Inst. Code, § 361.3, subd. (a).)
      2. Did the court abuse its discretion in not placing the child with a relative? (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
        1. Where the grandparents had provided proper care for the minors and would not obstruct reunification efforts, the court abused its discretion in not placing the children with them. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1068.)
        2. "A relative, who presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent‑child relationship and less likely to develop a conflicting emotional bond with the child." (In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493.)
        3. Did the relative or those living in the home have a criminal history?
          1. This will prevent placement unless the criminal history is a minor traffic violation, or unless the county granted a criminal record exemption. (Welf. & Inst. Code, § 361.4, subds. (b), (d)(1).)
          2. The criminal-history disqualification is mandatory and the juvenile court acted in excess of its authority when it ignored the disqualifying history and ordered placement. (Los Angeles County Dept. of Children & Fam. Services v. Superior Court (Richard A.) (2001) 87 Cal.App.4th 1161, 1163.)
          3. But where the child and prospective adoptive parent are Indian and a person in the prospective adoptive parent's home has suffered a criminal conviction, the agency must either ask for a waiver of the disqualifying provisions of section 361.4, or adequately support its reasons for not doing so if failure to request a waiver results in a placement that contravenes the ICWA preferences. (In re Jullian B. (2000) 82 Cal.App.4th 1337, 1347.)
  7. Family Maintenance services (when the court orders that a parent retain custody subject to social worker's supervision). (Welf. & Inst. Code, § 362, subd. (b); Cal. Rules of Court, rule 1456(a)(5).)
    1. Did the court order the proper family maintenance services?
      1. Where a non-offending parent neither abused her children nor failed to protect them, the court abused its discretion in ordering the non-offending parent to attend parenting education classes. (In re Jasmine C. (2003) 106 Cal.App.4th 177, 181.)
    2. What is the appellate standard of review for the reasonableness of services?
      1. The juvenile court's findings are subject to review for substantial evidence. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361‑1362.)
  8. Reunification services.
    1. When is the court required to provide reunification services to the parent?
      1. In all cases, unless certain exceptions apply. (Welf. & Inst. Code, § 361.5, subd. (a).)
    2. Did the court improperly deny or grant reunification services to a particular party?
      1. Only the child, the child's mother, and the child's statutorily-presumed father receive services. (Welf. & Inst. Code, § 361.5, subd. (a).)
        1. A presumed mother can also get reunification services. "[T]he legal principles concerning the presumed father apply equally to a woman seeking presumed mother status." (In re Salvador M. (2003) 111 Cal.App.4th 1353, 1357, 1359.)
      2. Is a stepparent entitled to reunification services?
        1. There is a split. The Sixth District has held no (In re Jodi B. (1991) 227 Cal.App.3d 1322, 1329) as has the Third District (In re Jody R. (1990) 218 Cal.App.3d 1615, 1626-1629). The Second District, Division Two, has held that services to a stepparent are permissible. (In re Venus B. (1990) 222 Cal.App.3d 931, 936.)
      3. Is a de facto parent entitled to services? A de facto parent is a person who has been found by the court to have assumed, on a day‑to‑day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period. (Cal. Rules of Court, rule 1401(a)(4).)
        1. No. (In re Jamie G. (1987) 196 Cal.App.3d 675, 684.)
      4. Is a grandparent entitled to reunification services?
        1. No. (In re Albert B. (1989) 215 Cal.App.3d 361, 381.)
    3. Did the plan contain the required elements?
      1. The plan "must be appropriate for each family and be based on the unique facts relating to that family." (In re Edward C. (1981) 126 Cal.App.3d 193, 205.)
      2. The plan must be specifically tailored to meet the needs of the parents. (See In re Sergio C. (1999) 70 Cal.App.4th 957, 960 [drug testing component of reunification plan for father reversed where based solely on the unsworn and uncorroborated allegations of a drug-addicted mother who had abandoned her children].)
        1. If parent is disabled, either physically or emotionally, the case plan must take into account those special needs. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1792.)
    4. Are challenges to the case plan waived?
      1. Yes, if the party consented to the case plan. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1476.)
      2. Yes, if the party is appealing this issue from a hearing other than one at which the plan was made. (In re Julie M. (1999) 69 Cal.App.4th 41, 47 [having declined to seek appellate review of the dispositional order, and having failed to file a petition to modify the dispositional order, the mother cannot raise issues regarding the case plan].)
      3. Yes, if the party never raised the issue of the defects of the case plan from the at-issue hearing. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)
    5. Does one parent have standing to object to inadequate services provided to another parent?
      1. No. (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1503.)
    6. Services to an incarcerated parent.
      1. a. Are services mandatory?
        1. Yes, reasonable services are mandatory unless the court determines by clear and convincing evidence that those services would be detrimental to the child. (Welf. & Inst. Code, § 361.5, subd. (e); Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.)
        2. "[G]o to prison, lose your child" is not the law. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402.)
        3. A child's young age is not a sufficient reason standing alone to deny a parent in-jail visits. (In re Dylan T. (1998) 65 Cal.App.4th 765.)
      2. Services must be properly tailored.
        1. Where child is very young (two to three years old), limiting contact to phone calls and letters may be inappropriate where the incarcerated parent is housed within 40 miles of the child. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407.)
      3. Do incarcerated parents have a right to appear in court in the dependency proceeding?
        1. Yes, Penal Code section 2625 requires that a court must order a prisoner's production if the prisoner asks to be present.
        2. Even if the court orders the prisoner's production and the county fails to transport him, the court may still have to proceed in his absence when continuing the case would extend the dispositional hearing beyond the six-month deadline. (D. E. v. Superior Court (2003) 111 Cal.App.4th 502, 513.)
        3. "However, a statutory right to be present at dependency hearings does not equate with a due process violation for failure to facilitate appellant's appearance." (In re Axsana S. (2000) 78 Cal.App.4th 262, 271.)
          1. But, the issue of whether an incarcerated presumed father has a statutory or due process right to be present at any hearing on paternity status is currently on review. (In re Jesusa V. (2002) 97 Cal.App.4th 878, review granted Aug. 14, 2002, S106843, B151885.)
    7. When may a parent be denied reunification services (i.e., "bypass")? 
      1. Can the issue of denial of services be raised by direct appeal?
        1. No, only by writ review, because the denial of services requires that a 366.26 hearing be set. (In re Rebecca H. (1991) 227 Cal.App.3d 825, 836.)
        2. Yes, if appellant was not given timely notice of the right to file a writ petition, appellant's claims with respect to the merits of the order by‑passing reunification services and setting a section 366.26 hearing are cognizable on the appeal of the 366.26 hearing despite the lack of compliance with Welfare and Institutions Code section 366.26, subdivision (1), and rule 39.1B of the California Rules of Court. (In re Rashad B. (1999) 76 Cal.App.4th 442, 450; In re Cathina W. (1998) 68 Cal.App.4th 716, 722.)
          1. Did the court advise appellant appropriately that writ review was necessary? The court must advise as follows:
            1. Review of the court's order must be by a Rule 39.1B writ; and
            2. Notice of intent to file the writ and request for record must be filed with the juvenile court clerk within seven days of the order. (Cal. Rules of Court, rules 39.1B(f), 1462(b)(10).)
            3. This advice must be given orally to all parties present at the setting hearing. (Cal. Rules of Court, rule 1462(b)(10).)
            4. Within 24 hours of the order, written notice of the writ requirement must be sent by first-class mail to the last known address of any party not present. Judicial Council Forms JV-820 and JV-825 must accompany the mailed notice. (Cal. Rules of Court, rule 1462(b)(1).)
      2. Services may be denied when the whereabouts of the parent are unknown. (Welf. & Inst. Code, § 361.5, subd. (b)(1).)
        1. A finding under this exception must be supported by an affidavit or proof that a reasonably diligent search has failed to locate the parent. (Welf. & Inst. Code, § 361.5, subd. (b)(1).)
      3. Services may be denied when the parent is suffering a mental disability that makes him or her incapable of utilizing services. (Welf. & Inst. Code, § 361.5, subd. (b)(2).)
        1. Did the court made the required finding of disability under Family Code section 7827 by two properly-qualified experts?
          1. If one expert is unqualified, the order must be vacated and the harmless error test is inapplicable. (In re Catherine S. (1991) 230 Cal.App.3d 1253, 1258.)
        2. A juvenile court has the authority to deny services to a parent who refuses to comply with a valid court order for a psychological evaluation. (In re C. C. (2003) 111 Cal.App.4th 76, 80.)
      4. Services may be denied when the child or sibling has been abused, returned, and abused again. (Welf. & Inst. Code, § 361.5, subd. (b)(3).)
      5. Services may be denied when the parent has caused the death of another child through abuse or neglect. (Welf. & Inst. Code, § 361.5, subd. (b)(4).)
        1. The parent does not have to be convicted of the death, as was the law previously. (See In re Jessica F. (1991) 229 Cal.App.3d 769, 776, fn. 8.)
      6. Services may be denied when a child under five suffered severe physical abuse. (Welf. & Inst. Code, § 361.5, subd. (b)(5).)
        1. The department does not have to prove that the parent caused the abuse. (See In re Eileen A. (2000) 84 Cal.App.4th 1248, 1252 [trial court denied any reunification services to her mother because of the severity of physical abuse perpetrated by the father].)
      7. Services may be denied when a child suffered severe sexual abuse or physical injury. (Welf. & Inst. Code, § 361.5, subd. (b)(6).)
        1. The department does not have to prove that the parent caused the abuse.
        2. A parent's omission of care can qualify for bypass. (Pablo S. v. Superior Court (2002) 98 Cal.App.4th 292, 300-301.)
        3. The child who suffers the injury may be a sibling. However, when a foster child is injured, the parent does not fall within this section. (In re Tanyann W. (2002) 97 Cal.App.4th 675, 679.)
      8. Services may be denied when the parent is not receiving reunification services for a sibling or half-sibling. (Welf. & Inst. Code, § 361.5, subd. (b)(7).)
      9. Services may be denied when the child was conceived by an act of rape or molest. (Welf. & Inst. Code, § 361.5, subd. (b)(8).)
        1. This section applies to the offender only.
        2. It is not clear whether a conviction is needed.
      10. Services may be denied when the parent willfully abandoned the child. (Welf. & Inst. Code, § 361.5, subd. (b)(9).)
      11. Services may be denied when the court has terminated services as to a sibling or half-sibling and the parent has not made a reasonable effort to treat the problem. (Welf. & Inst. Code, § 361.5, subd. (b)(10).)
        1. The "reasonable effort to treat" standard found is not synonymous with "cure." For example, simply because the mother had not entirely abolished her drug problem, that would not preclude the court from determining that she had made reasonable efforts to treat it. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
      12. Services may be denied when the court has terminated the parental rights as to a sibling or half-sibling and the parent has not made a reasonable effort to treat the problem. (Welf. & Inst. Code, § 361.5, subd. (b)(11).)
        1. This section also applies where a parent's rights to a minor's sibling have been severed due to a voluntary relinquishment of those rights. (In re Angelique C. (2003) 113 Cal.App.4th 509, 519.)
        2. The reasonable-effort-to-treat standard is not synonymous with "cure." For example, simply because the mother had not entirely abolished her drug problem, that would not preclude the court from determining that she had made reasonable efforts to treat it. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
          1. Resisting treatment does not require a refusal to undergo treatment. Where a parent "has technically completed rehabilitation programs, her failure to maintain any kind of long‑term sobriety must be considered resistance to treatment." (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.) Repeated positive testing while participating in a drug program constitutes resistance to treatment. (Karen H. v. Superior Court (2001) 91 Cal.App.4th 501, 504; Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1008, 1009‑1011; In re Levi U. (2000) 78 Cal.App.4th 191, 200.)
      13. Services may be denied when the parent has committed a violent felony. (Welf. & Inst. Code, § 361.5, subd. (b)(12).)
      14. Services may be denied when the parent has a history of extensive, abusive, and chronic drug or alcohol use and has resisted treatment for the last three years or has failed to comply with a court-ordered treatment plan. (Welf. & Inst. Code, § 361.5, subd. (b)(13).)
      15. Services may be denied when the parent does not want to receive services and executes the proper waiver forms. (Welf. & Inst. Code, § 361.5, subd. (b)(14).)
      16. Services may be denied when the parent on one or more occasions had abducted the child or sibling and refused to disclose the child's whereabouts, or refused to return physical custody of the child to the placement or social worker. (Welf. & Inst. Code, § 361.5, subd. (b)(15).)
      17. Services may be denied to an incarcerated parent if the court determines, by clear and convincing evidence, those services would be detrimental to the minor. (Welf & Inst. Code, § 361.5, subd. (e)(1).)
        1. In determining detriment, the court shall consider the age of the minor, the degree of parent‑child bonding, the length of the sentence, the nature of the treatment, the nature of crime or illness, the degree of detriment to the minor if services are not offered and, for minors 10 years of age or older, the minor's attitude toward the implementation of family reunification services, and any other appropriate factors. (Welf. & Inst. Code, § 361.5, subd. (e)(1).)
        2. There is no blanket restriction on visitation for incarcerated parents based solely on the age of the child. (In re Dylan T. (1998) 65 Cal.App.4th 765, 774.)
    8. What is the standard the juvenile court uses to deny services?
      1. The department must show by clear and convincing evidence that one of the exceptions to reunification apply. (In re Manolito L. (2001) 90 Cal.App.4th 753, 761.)
    9. What is the standard to review the decision to bypass services?
      1. Substantial evidence for bypass. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.)
    10. Can the issue of whether the parent should have received services be waived?
      1. Yes, if the parent's attorney conceded services would be futile. (In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1649.)
      2. Possibly yes, if the parent did not make it clear that he or she wanted services. (See In re Terry H. (1994) 27 Cal. App.4th 1847, 1853 [where father's attorney made several unambiguous and straightforward requests for reunification and the court understood those requests, but denied them, the issue of denial of services is preserved].)
  9. Are there issues arising out of the court's visitation orders or lack thereof?
    1. Did the court order visitation between child and parent?
      1. Visitation is required when the court orders services and places the child in a foster home (foster home include relatives' homes). (Welf. & Inst. Code, 362.1, subd. (a).)
      2. Visitation is not required if necessary to protect the child. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 838-839.)
      3. Visitation should be "as frequent as possible consistent with the well-being of the child." (Welf. & Inst. Code, § 362.1, subd. (a)(1).)
    2. Did the court order visitation between the child and his or her siblings?
      1. Visitation is required unless the court finds by clear and convincing evidence that the visits are detrimental to either child. (Welf. & Inst. Code, § 362.1, subd. (a)(1)(B)(2).)
    3. Did the juvenile court improperly delegate its judicial authority regarding visitation?
      1. Did the juvenile court improperly delegate its authority to the department?
        1. A judicial order allowing supervised visitation of the father and a child as "arranged through, and approved by" the county human services agency was invalid as an improper delegation of judicial authority. The order, although it did not authorize the agency to determine whether the mother had the right to visitation, gave the agency no guidance as to when, how often, and under what circumstances visitation was to occur. (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.)
      2. Did the juvenile court improperly delegate its authority to a therapist?
        1. The Second District Court of Appeal, Division Four, reversed an order that a father have no visitation rights without permission of minors' therapists, because the order unlawfully delegated judicial authority by conditioning visitation on the children's therapists' sole discretion. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1475-1477.)
      3. Did the juvenile court improperly delegate its authority to the children?
        1. The Fourth District, Division Three, held that the juvenile court abused its discretion in giving the children absolute discretion to decide whether their mother could visit with them because it essentially delegated judicial power to the children. (In re Julie M. (1999) 69 Cal.App.4th 41, 48-49.)
        2. The Second District, Division Seven, held the visitation order impermissibly delegated the trial court's authority over visitation to the children, as the order granted the children de facto veto power to ensure no visitation would occur absent the children's consent. Although the order affirmatively determined there was a right to visitation, by failing to mandate any minimum number of monitored visits per month or even to order that some visitation had to occur each month, the trial court's abstract recognition of the mother's right to visitation was illusory. It transformed the children's ability to refuse a visit into the practical ability to forestall any visits at all. There had to be some assurance that, should that occur, another visit would be scheduled and actually take place. (In re S. H. (2003) 111 Cal.App.4th 310, 319.)
      4. Did the juvenile court improperly delegate its authority to the guardian?
        1. This issue is currently on review in a 366.26 appeal in which a legal guardian was appointed for a child under Welfare and Institutions Code section 366.26, subdivision (c)(4), and the court gave the guardian authority to decide whether visits were to occur. (In re S.B. (2002) 103 Cal.App.4th 739, review granted Jan. 22, 2003, No. S112260/B154825.)
    4. Did the juvenile court fail to define the parameters of visitation?
      1. A court must "define the rights of the parties to visitation." (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) The court may delegate "ministerial tasks of overseeing the right [to visitation] as defined by the court" to a child protective services agency. (Ibid.) Within guidelines established by the court, the child protective services agency may exercise flexibility in managing the visitation. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1375; In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237; but see In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 [stating in dicta that a court should determine frequency and length of visitation].)
    5. Did the juvenile court impermissibly interfere with the parent's right to visitation?
      1. When the state removes children from their parents, it is obliged to make reasonable efforts to reunify the family. The Fifth District Court of Appeal reversed an order precluding incarcerated jail visitation because of the child's young age. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) The Third District Court of Appeal reversed an order placing minors with relatives in Southern California when the mother lived in Northern California. (In re Luke L. (1996) 44 Cal.App.4th 670.)
    6. Is the issue of the court's order denying visitation waived?
      1. Yes, if appellant failed to ask for visits or object to the lack of visits. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 838.)
      2. The related issue of whether appellant can raise for th first time on appeal the purported improper delegation of visitation is currently on review in the California Supreme Court. (In re S.B. (2002) 103 Cal.App.4th 739, review granted Jan. 22, 2003, No. S112260/B154825.)
  10. What happens at the end of the dispositional hearing?
    1. If reunification services are denied, the court must inform the parent of the right to file a Rule 39.1B writ. (Cal. Rules of Court, rule 1456(f)(17).) If the writ is denied, the next hearing will be the 366.26 hearing, which must be set within 120 days of the dispositional hearing when services are bypassed. (Welf. & Inst. Code, § 361.5, subd. (f).)
    2. If reunification services are granted, the court must set a six-month review hearing. (Cal. Rules of Court, rule 1456(h).)

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