discussing the distinction between juvenile court and family 19 court
How later courts described this case
- discussing the distinction between juvenile court and family 19 court
Written by the judges who cited it.
The opinion
MOSK, J., Concurring and Dissenting.
I generally concur in the judgment. In most respects, the Court of Appeal did not commit error in affirming the juvenile court’s order terminating its dependency jurisdiction over the minor, Chantal S., with an order allowing visitation by her father, Randall S., on conditions including commencement of psychotherapy and satisfactory progress therein.
I dissent, however, as to a single matter.
The Court of Appeal committed reversible error in affirming the juvenile court’s visitation order insofar as it effectively, and unlawfully, delegates judicial authority to individuals outside the government.
A glance at the visitation order, which is set out in the margin, 1 reveals a grant of substantially unfettered discretion to private psychotherapists. Who will determine whether Randall’s not-yet-retained psychotherapist—whoever he may be—is a “therapist qualified to work with issues such as” his? Indeed, who will determine what “issues such as his” are? The answers are not clear. Presumably, however, the not-yet-retained psychotherapist will himself decide. Next, who will determine whether Randall has “attend[ed] therapy regularly and ma[d]e satisfactory progress for a time” with his not-yet-retained psychotherapist? Also, who will determine what “time” is sufficient? The answers here are clear. But no better. The not-yet-retained psychotherapist will himself decide.
That the juvenile court “would have been within its discretion to simply deny [Randall] any visitation” at all (maj. opn., ante, at p. 214) does not *216 mean that it could properly have allowed visitation through an unlawful delegation of judicial authority—say, to Chantal herself or to a committee of her playmates. The authority to deny lawfully does not entail a power to grant unlawfully.
Moreover, that the visitation order “contemplates that all persons subject thereto would remain under the control of the family court and that any party who wished to contest the conduct of a therapist (or the continued propriety of the order based on changed circumstances) would be able to raise that issue in the family court” (maj. opn., ante, at p. 214) does not mean that it does not effect an unlawful delegation of judicial authority to individuals outside the government. It may not make a delegation that is irrevocable. But it does make one that is unlawful.
“Visitation order for father, Randy [S.] to be facilitated by the minor’s therapist, Diane Childs.
“Before visitation with father and his daughter can occur, father must be:
“1. In psychotherapy with a therapist qualified to work with issues such as Mr. [S.]’s.
“2. Father must attend therapy regularly and make satisfactory progress for a time before any visits as determined by his therapist.
“3. At the time that visits are scheduled to begin, Mr. [S.] must sign a release of information to Ms. Childs to obtain information from his therapist regarding progress in therapy and to allow Ms. Childs to relay issues she sees during visits that are of a concern for her.
“4. Father will be financially responsible for these visits. Payment to be at the beginning of all visits.
“5. Visits will be in Ms. Child’s [sic] office; Familiar [sic] surroundings for Chantal.”