During the reunification process, visitation in Juvenile Dependency cases is penultimate. It is the starting process, along with compliance with the case plan, to mend the familial unit and to maintain and strengthen the bond between the parent(s) and the child(ren). The Welfare and Institutions Code expressly enumerates that during the reunification process, parents should have as much visitation as possible as long as such visitation doesn’t jeopardize the safety of the child(ren).
Welfare and Institutions Code Section 362.1(a)(1)(A) states:
In order to maintain ties between the parent or guardian and any siblings and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent or guardian, or to encourage or suspend sibling interaction, any order placing a child in foster care, and ordering reunification services, shall provide as follows: Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child [as long as it does not jeopardize the safety of the child, as indicated in paragraph B].
California case law has frequently buttressed the language in WIC § 362.1(a)(1)(A). See In. re. Donnovan J. (1997) 58 Cal.App.4th 1474, 1475. Visitation rights arise from the very “fact of parenthood” and the constitutionally protected right “to marry, establish a home, and bring up children.” In re Jennifer G. (1990) 221 Cal.App.3d 752, 756-757. When the state removes children from their parents, it is obliged to make reasonable efforts to reunify the family. In re Donovan J., supra.
Beyond the state dependency statutes, the right to maintain a familial unit is one of the most basic federal and constitutional rights a family has.
The United States Supreme Court has repeatedly recognized that the “Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville (2000) 530 U.S. 57, 66. “The interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations] … .” In re B. G. (1974), 11 Cal.3d 679, 688; see Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 641. ‘Visitation rights arise from the very “fact of parenthood” and the constitutionally protected right “ ‘to marry, establish a home and bring up children.’ ” [Citation.]’ (In re Julie M.[, supra,] 69 Cal.App.4th 41, 49 [81 Cal. Rptr. 2d 354].)” (Hoversten v. Superior Court, supra, 74 Cal.App.4th at p. 641.
Hence, the nature and frequency of visitation will correlate directly with the nature of the allegations sustained against the parent, the parent’s engagement in reunification services offered, and the level of risk at the time of disposition and thereafter. Courts have long accepted that, in the context of dependency proceedings, a lack of visitation may “virtually assure the erosion (and termination) of any meaningful relationship” between mother [or parent] and child. In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407.
While in a perfect world parents’ visitation should be plentiful, that is not always the case and unfortunately is not the status quo in dependency cases. The Department may not be willing to increase or modify visitation for a variety of reasons:
- They don’t have the ability to. At disposition, the Court may not allow the Department control of visitation absent a further Court Order. It is important at/post the disposition hearing for the Department to have the discretion to increase visitation, whether that means to increase the frequency and time of visitation, or whether that means modifying visitation from supervised to unsupervised to allowing for overnight visits.
- They don’t have the capacity to do so. A “standard” practice in most counties is to allow for one hour of supervised visitation weekly or biweekly. The simple reason for this is that the County doesn’t have the resources to allow for increased or multiple visits per week. Even if a County may have the capacity to allow for some increased supervised visitation, they don’t, because they have the mentality of “if we increase one person’s supervised visitation, we’d have to do it for everyone else.” See my related article on reasonable visitation and the multitude of arguments that the attorney can make to maximize your visitation.
- They don’t want to. An individual’s compliance with a case plan technically should be an objective set of criteria that an individual should be able to follow. The compliance with a case plan should, in theory, directly correlate to the safety of the child, and therefore allow for more visitation (remember the language of WIC 361 above). However, when an objective measure is left to the hands of a social worker (or anyone really), it transitions into a subjective metric. Different social workers can interpret an individual and their case in a multitude of ways, hence, there is no telling whether an individual social worker will increase visitation even if the objective criteria should allow for it.
- The child doesn’t want to visit. If the child doesn’t want to visit, and the Department chooses to cancel visitation solely on this basis, one must move the Court for action. “In no event, however, may the child’s wishes be the sole factor in determining whether any visitation takes place, either as a formal matter or, as occurred in the case now before us, by effectively giving the children the power to veto all visits.” In re S.H. (2003) 111 Cal. App. 4th 310, You can litigate the social worker choosing to stop visitation based on a child’s wishes. There is a large battery of cases that address this very unique and specific issue.
In these situations, one can and should move the Court to increase visitation and indirectly remind the Department of the law regarding visitation. While the Court may delegate authority to the Department, with limitations, the ultimate determination regarding visitation is with the Court. “[A] visitation order granting the Department complete and total discretion to determine whether or not visitation occurs would be invalid.” In re Danielle W. (1989) 207 Cal. App. 3d 1227, 1237. Article II, section 3, of the state Constitution provides, “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” In re Danielle W. (1989) 207 Cal. App. 3d 1227, 1235 (citing CA Const. art III, § 3). The determination of the right to visitation is part of the judicial function and must be made by the Court.
If a parent has been complying with a case plan, post-disposition, and the Department has dug their heels in regarding visitation, an interested party may file a petition per WIC § 388 to request that the Court intervene and provide for additional visitation.
A petition under Welfare and Institutions Code Section 388 may be brought to request a hearing to modify, change, or set aside a previous court order on the ground that changed circumstances or new evidence justify the requested order. Welfare and Institutions Code § 388 subd. (a). W&I § 388 is the method for taking in account the changing of a family and a child’s life. In re Eileen A. (2000) 84 Cal.App.4th 1248, 1260, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.App. 4th 396. WIC § 388 allows an interested person in a dependency case to petition the court for a hearing to modify any previous order based on changed circumstances or new evidence.
If you are in a situation where one of the aforementioned factors is preventing you from having increased visitation with your children, please contact the Law Offices of Johnson & Johnson. Our team of attorneys and legal staff will assess your case and determine what options are available to you based on the nature, procedural posture, facts, and circumstances of your case. If there is a legitimate fight, we will take it to the court.
