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Name: In re Korbin Z.
Case #: B269429
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 09/19/2016

The trial court erred by ordering visitation with Father at the minor’s sole discretion. Father had not seen the minor, Korbin, for nine years when the minor was removed from his mother. After a 366.26 hearing was set, Father filed a 388 petition requesting custody of Korbin. The trial court denied the petition, finding that Father had not met his burden of showing that changing the prior order, which placed Korbin with relatives, was in his best interests. Korbin wanted to stay with relatives and did not want to visit Father. The court ordered monitored visitation in a therapeutic setting, at the minor’s discretion. Father appealed, contending that the juvenile court erred in giving 9-year-old Korbin sole discretion over Father’s visitation. The appellate court agreed and reversed the order. Father had no right to visitation, as the court did not order reunification services under section 361.5, subdivisions (b)(1) and (d), because his whereabouts were unknown for more than six months after the child’s out of home placement. However, the court may order visitation in its discretion with a finding that visitation will be in the child’s interest. If it does so, the court cannot give the child sole discretion to determine whether the visits will occur. Once the court has decided that visitation is in the child’s best interest, it must ensure that visitation occurs under terms set by the court. Therefore, remand was required for the court to reconsider whether to order visitation, and if so, the terms of such visitation.