In re S.H

In In re S.H. (2003) 111 Cal.App.4th 310, the mother of three dependent children challenged an order which, although granting her monitored visitation, also provided that "if the children refuse a visit, then they shall not be forced to have a visit." (Id. at p. 316.) The Court of Appeal held this constituted an impermissible delegation of judicial authority. Among other things, the court explained: "It is the juvenile court's responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. To sustain this balance the child's social worker may be given responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur. In addition, the parents' interest in the care, custody and companionship of their children is not to be maintained at the child's expense; the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation. "Nonetheless, the power to decide whether any visitation occurs belongs to the court alone. When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine. The discretion to determine whether any visitation occurs at all 'must remain with the court, not social workers and therapists, and certainly not with the children.'" (In re S.H., supra, 111 Cal.App.4th at pp. 317-318.) The Court reversed a portion of the jurisdictional order which appeared to determine that mother had a right to visit, but in fact made visitation contingent upon the children's approval. The visitation order stated, "'if the children refuse a visit, then they shall not be forced to have a visit.'" (S.H., supra, 111 Cal.App.4th at p. 313.) S.H. held that as in Julie M., the order improperly gave the children veto power to ensure visitation would not occur without the children's consent, even though the court ordered for visitation to occur as part of the reunification plan. (S.H., supra, 111 Cal.App.4th at pp. 313, 318.) S.H. held that "by failing to mandate any minimum number of monitored visits per month or even to order that some visitation must occur each month, the court's abstract recognition of the mother's right to visitation is illusory, transforming the children's ability to refuse 'a visit' into the practical ability to forestall any visits at all." (Id. at p. 319.)