Thursday, December 5, 2013
Court Cannot Order Visitation Between Siblings, Court of Appeal Rules
By a MetNews Staff Writer
A juvenile court judge has no jurisdiction to order visitation between a dependent child and a nondependent sibling, the Third District Court of Appeal has ruled.
The court yesterday ordered partial publication of Justice Andrea Hoch’s Nov. 5 opinion for the panel upholding a Sacramento Superior Court judge’s denial of an order that would have required the mother of an 18-year-old dependent with mental health problems to facilitate visitation with the young man’s 5-year-old sister.
The teenager, identified as Luke H., was found dependent two years ago and placed with the family of his best friend. The court has retained jurisdiction in the case, pursuant to a statute allowing dependency jurisdiction until age 21.
The court granted the county’s dependency petition on grounds that the mother, Deborah H., had caused her son to suffer significant emotional distress, manifesting itself in physical illness, by constantly yelling at him, belittling him, and threatening to have him committed for psychological evaluation.
A separate petition on behalf of Luke H.’s developmentally delayed sister, Angel, was dismissed by stipulation.
Last year, the son brought a petition for modification of the court’s jurisdictional order, asking that his mother be required to allow him to visit his sister. The mother—who said she did not want her son around the younger child because he had a history of involvement with child pornography, and because it would be bad for Angel emotionally—contended that the petition was an attack on her constitutional rights as a parent.
Judge Jerilyn Borack denied the petition, citing In re A.R. (2012) 203 Cal.App.4th 1160. The court there overturned an order for supervised visitation between a dependent 17-year-old and a non-dependent 5-year-old half-sister.
Hoch, writing for the Court of Appeal, agreed that A.R. was controlling.
Luke H.’s primary argument, that the cases were distinguishable be
because the juvenile court in A.R. lacked jurisdiction over the custodial parent, “misses the point,” the justice said.
“The juvenile court’s jurisdiction over mother (Angel’s custodial parent) does not matter,” Hoch explained “What matters is that the juvenile court had no statutory authority to enter a visitation order regarding a nondependent sibling.”
The justice also rejected the contention that denial of his petition deprived the teenager of his constitutional right to familial association.
What the Constitution requires, Hoch explained, is a strong justification for government policies that prevent family members from associating with each other. But the case cited by Luke H., Moore v. East Cleveland (1977) 431 U.S. 494, is distinguishable, she said.
Moore involved an ordinance that limited occupancy of a single-family dwelling to family members, narrowly defined. But the impediment to Luke H. visiting with his sister, Hoch reasoned, is his mother’s personal decision and not a governmental policy.
The case is In re Luke H., 13 S.O.S. 6151.
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