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Name: In re S.J.
Case #: E042695
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/22/2008

The order denying mother’s petitions under Welfare and Institutions Code section 388 was not an abuse of discretion, as mother failed to meet her burden that new or changed circumstances existed, and that modifying the prior order would be in the best interests of the children. The mother filed three petitions under section 388 requesting the juvenile court to modify the visitation order as to her two daughters. She alleged the unsupervised visitation to the children in the appointed guardian’s home had been “too sporadic” and not “frequent or liberal, as per the original order” ever since she relocated to a different city. The Court of Appeal affirmed the denial of the petitions. Mother did not file the petition until nearly four years after moving. In any event, “[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 520). Mother was known to exhibit erratic behavior and was hospitalized for mental instability approximately one year before the hearing on the petitions. The older of the two daughters, 13-year-old S.J., said she was “sick of” her mother going to court regarding her, and the other daughter, 12-year-old, D.J., thought it was a “waste of time.” D.J. indicated that mother did not take advantage of her time with the children and used it to run personal errands. Under these circumstances, mother failed to establish that the proposed change would promote the best interests of the children.
Welfare and Institutions Code section 366.26, subdivision (c)(4)(C), which precludes a juvenile court from delegating to the appointed guardian the authority to decide whether visitation will occur, does not apply to a visitation order made before that subdivision became effective. The order of visitation provided: “Visitation between the child[ren] and mother . . . shall be as directed by the legal guardian.” Mother argued that the juvenile court’s visitation order improperly delegated to the appointed guardian the power to decide if she could visit the children. In the case of In re M.R. (2005) 132 Cal.App.4th 269, this court held that under section 366.26, subdivision (c)(4)(C), a juvenile court was required to make a visitation order unless it found visitation was not in the children’s best interest; as a result, “it could not delegate authority to the legal guardian to decide whether visitation would occur.” (Id. at p. 274.) However, the visitation order in the instant case was made in January 2000. Section 366.26, subdivision (c)(4)(C), did not become effective until January 1, 2005. There is no indication the legislature intended the amendment to operate retrospectively, nor was the amendment simply a clarification of the law. Therefore, the order of visitation was proper, and in accord with In re Jasmine P. (2001) 91 Cal.App.4th 617, 621, which held under the former statute that a juvenile court could delegate to the legal guardian the issue of visitation between parent and child.