In re David L.

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Filed 9/24/03 In re David L. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re DAVID L., a Person Coming Under
the Juvenile Court Law.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
BONNIE S.,
Defendant and Appellant.
C042781
(Super. Ct. No.
JD216956)
Bonnie S. (appellant), the mother of David L. (the minor),
appeals from juvenile court orders establishing a guardianship.
(Welf. & Inst. Code, § 366.26; further section references are to
this code unless otherwise specified.) She contends that there
is no evidence the Department of Health and Human Services (DHHS)
complied with the notice requirements of the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.), and that the juvenile

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court improperly delegated to the guardian the court’s authority
over visitation.
We shall remand this matter to the juvenile court for the
limited purpose of determining whether DHHS complied with the
notice provisions of ICWA and whether ICWA applies to the minor.
FACTS
The three-year-old minor was removed from parental custody
in June 2001, due to his parents’ persistent substance abuse and
domestic violence. At the detention hearing, appellant indicated
she might have some Cherokee Indian heritage through her father.
The juvenile court ordered “the Department of Health and Human
Services . . . to comply with ICWA requirements. Social Worker
to make further inquiries and[,] if appropriate, ICWA notice shall
be provided.” The minor was placed in the home of his paternal
grandparents.
The court denied appellant services, and the minor’s father
failed to complete his reunification plan. An adoption assessment
accompanying the twelve-month review report recommended a permanent
plan of guardianship with the paternal grandparents, contingent
upon monthly visits for appellant, supervised by a third party due
to problems between appellant and the paternal grandparents.
The reports contained no information on further inquiry into
appellant’s status as a member of any Cherokee tribe or any notices
sent to any tribe in compliance with ICWA. And the court made
no finding as to appellant’s Indian status.
The assessment for the section 366.26 hearing stated that
the minor had visited the maternal grandparents and maternal aunt

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every other weekend and that the maternal relatives supervised
appellant’s visits when the minor was in their care. DHHS
continued to recommend a permanent plan of guardianship with the
paternal grandparents. The case plan attached to the assessment
included supervised monthly visits for appellant; but the order
recommended by DHHS merely would allow visitation “as arranged with
the guardian and subject to any reasonable conditions, including
supervision, as the guardian considers necessary, unless such
visits would be detrimental to the child.”
At the section 366.26 hearing, appellant objected to the
plan of guardianship and, asserting that unilateral discretion
over visitation should not be given to the guardian, she asked for
a more specific visitation order than proposed by DHHS. The court
questioned the proposed guardians and the maternal grandmother
about the current visitation arrangements. The maternal
grandmother stated that she supervised appellant’s visits twice a
month at her home. The court asked: “If I made an order for the
parents that it be -- that the guardians are in control of visits
but it’s got to be at least a minimum of one time a month, would
everybody be in agreement with that?” Both grandmothers agreed to
this visitation order, and no one else objected. Accordingly, the
court ordered “Visitation between the child and parents shall be:
Parents shall have contact with the child as arranged and directed
through the Guardians, under any conditions deemed appropriate by
the Guardians, unless the Guardians deem the visitation to be
detrimental to the child. Visitation shall be at a minimum of
one time per month. If the Guardians deem visitation detrimental,

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they shall notify the parents of the reasons for their decision.”
No one made any further objection to the visitation order.
DISCUSSION
I
The juvenile court selected guardianship as the permanent plan
and terminated the dependency. When guardianship is the plan, the
court is required to make a visitation order. (In re Randalynne G.
(2002) 97 Cal.App.4th 1156, 1163; but see In re Jasmine P. (2001)
91 Cal.App.4th 617.)1 Appellant contends the order in this case
improperly delegated discretion over visitation to the guardians.
We disagree.
Appellant argues the visitation order permits the guardians
to determine “when and if” any visits should occur. However, as
appellant recognizes, the juvenile court set a minimum of monthly
visitation, to be arranged with the guardians and subject to
reasonable conditions, including supervision, as the guardians
consider necessary. This order does not vest the guardians with
the discretion to determine whether visitation should occur.
Rather, it allows for the guardians and the appellant to work out
the details of appellant’s visitation, including such factors as
when and where these visits will take place. Consequently, the
order is consistent with the decision of In re Moriah T. (1994)
23 Cal.App.4th 1367, in which this court held that delegation to
1 Issues relating to visitation when guardianship is selected
as the permanent plan are pending review in the Supreme Court.
(In re S.B. (2002) 103 Cal.App.4th 739, review granted 1/22/03
(S112260).)

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the social worker of the ministerial tasks of determining the time,
place, and manner of visitation, subject to review by the juvenile
court, is not an unauthorized delegation of the court’s authority
over visitation. (Id. at p. 1374; In re Randalynne G., supra,
97 Cal.App.4th at pp. 1165-1166 [permitting guardian to determine
whether any visits would occur is improper].)
The reasoning of In re Moriah T., supra, also applies in the
case of guardianship (although the guardians are private parties)
since the court continues to provide oversight of the ward’s
circumstances even when the dependency is terminated. (§§ 366.3,
subd. (a), 366.4.) The court’s order in this case determined not
only whether, but how frequently, visits should occur. The court
delegated only ministerial matters surrounding the specifics of
each visit to the guardians, subject to the court’s ability to
oversee the issue of visitation if it is unjustly denied or if
the guardians become convinced that further visitation would be
detrimental to the minor. (In re Moriah T., supra, 23 Cal.App.4th
at p. 1377; but see In re Randalynne G., supra, 97 Cal.App.4th at
pp. 1166-1167.)
The order also states that visits will occur, “unless the
Guardians deem the visitation to be detrimental to the child.”
Construing this language in light of the entire visitation order,
we interpret it to mean detriment to the child must be determined
on a visit-by-visit basis, i.e., the guardians do not have the
discretion to determine that all visitation is detrimental to the
minor, only that a particular visit is detrimental. The guardians
are further constrained to inform the minor’s parents of the basis

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for that determination, thus allowing for prompt judicial review.
This part of the order is similar to the order in In re Moriah T.,
which allowed visitation “‘consistent with the well-being of the
minor[s].’” (In re Moriah T., supra, 23 Cal.App.4th at p. 1375.)
In sum, the juvenile court did not grant the guardians the
legal authority to terminate visitation altogether. It only gave
the guardians the authority to end a particular visit, or deny a
visit, if they determined the particular visit was detrimental to
the child. This order is consistent with the unique requirements
of the juvenile court. “Visitation arrangements demand flexibility
to maintain and improve the ties between a parent . . . and child
while, at the same time, protect the child’s well-being. Moreover,
compelling a juvenile court judicial officer to specify such detail
in a visitation order creates the risk that the order actually may
work to the detriment of the child whom the court must protect
. . . .” (In re Moriah T., supra, 23 Cal.App.4th at p. 1376.)
There was no improper delegation of visitation to the guardians.
II
Appellant contends, and DHHS concedes, that the record fails
to disclose whether notice required by ICWA was ever given or
whether there was any determination by the juvenile court that ICWA
applied.
ICWA protects the interests of Indian children and promotes
the stability and security of Indian tribes by establishing minimum
standards for, and permitting tribal participation in, dependency
actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1912.) The juvenile
court and DHHS have an affirmative duty to inquire at the outset of

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the proceedings whether a child who is subject to the proceedings
is or may be an Indian child. (Cal. Rules of Court, rule 1439(d).)
If, after the petition is filed, the court “knows or has reason
to know that an Indian child is involved,” notice of the pending
proceeding and the right to intervene must be sent to the tribe
or the Bureau of Indian Affairs (BIA) if the tribal affiliation is
not known. (25 U.S.C. § 1912; Cal. Rules of Court, rule 1439(f).)
Appellant asserted Cherokee heritage through her father.
The record is devoid of evidence either of further inquiry which
would dispel the possibility that the minor was an Indian child
or of proper notice to the tribe and/or the BIA of the pending
proceeding.2 There also is no indication the court ever made a
determination whether the case came within the provisions of ICWA.
Failure to comply with the notice provisions and determine
whether ICWA applies is prejudicial error. (In re Kahlen W. (1991)
233 Cal.App.3d. 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th
460, 472.) Thus, we must reverse the orders of guardianship and
remand for further proceedings regarding compliance with ICWA.
DISPOSITION
The orders selecting guardianship as the permanent plan are
reversed, and the matter is remanded for the limited purpose of
2 Respondent invites us to apply the presumption that the social
worker performed her official duty with respect to the ICWA
inquiry and notice. (Evid. Code, § 664.) We cannot do so
because there is no indication in the record that the social
worker took any action on this issue after the detention hearing.

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determining whether DHHS complied with the notice provisions of
ICWA and whether ICWA applies in this case.
If, after proper inquiry, the juvenile court determines
that the tribe or BIA was properly noticed and there either was
no response or the tribe or BIA determined that the minor is not
an Indian child, the court shall reinstate the orders. If notice
was not given, the juvenile court shall order DHHS to comply
promptly with the notice provisions of ICWA and, if there is
no response or if the tribe or BIA determines the minor is not
an Indian child, the court shall reinstate the orders. However,
if the tribe or BIA determines the minor is an Indian child or if
information is presented to the juvenile court that affirmatively
indicates the minor is an Indian child as defined by ICWA and the
court determines ICWA applies to this case, the juvenile court
shall conduct a new section 366.26 hearing in conformance with
all the provisions of ICWA.
SCOTLAND , P.J.
We concur:
BLEASE , J.
DAVIS , J.

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