Opinion
G058382
09-08-2020
KIEL STEVEN BUR et al., Plaintiffs and Appellants, v. SANDRA CAROLINA VALENZUELA, Defendant; SANDRA ARCE VALENZUELA, Intervener and Respondent.
The Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L. Swisher for Plaintiffs Appellants. Judith Klein for Intervener and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FL000164) OPINION Appeal from an order of the Superior Court of Orange County, Andre De La Cruz, Judge. Affirmed. The Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L. Swisher for Plaintiffs Appellants. Judith Klein for Intervener and Respondent.
Plaintiffs Kiel Steven Bur (Kiel) and Randi Bur (Randi; Kiel and Randi, collectively plaintiffs) appeal from an order denying their request to terminate visitation by respondent Sandra Arce Valenzuela (respondent) with plaintiffs' now nine-year old-child (child). They argue respondent has no right to visitation because she is no longer child's grandmother due to the termination of parental rights of her daughter, defendant Sandra Carolina Valenzuela (defendant). They contend the court erred in considering respondent to be child's grandmother and assert there is no legal basis to grant visitation to a nonrelative just because it might be in child's best interest. They also claim there is no evidence denying visitation would be detrimental to child. Finding none of these arguments persuasive, we affirm the order.
FACTS AND PROCEDURAL HISTORY
Kiel and defendant, who were not married, had child in 2011 while they were living in Arizona. In 2013, defendant, with child in the car, was driving while intoxicated and crashed into a preschool. Child suffered severe injuries, including the loss of half of her skull. She was in a multiday induced coma and underwent several brain surgeries. She has since continued to have serious and continuing health problems. She will function at the level of a two-year old for the remainder of her life and relies on a caretaker for her daily needs.
Defendant was prosecuted and in February 2014 was sentenced to 10 months in jail. When she was released she sought parental visitation. Defendant visited only once until her parental rights were terminated in April 2017.
After he filed suit in Arizona, Kiel's paternity was established in 2013. Respondent intervened in the action seeking visitation. After a hearing, in February 2015 the Arizona court issued a lengthy order granting respondent visitation (February 2015 Order). It set out the statutory basis for the order, i.e., visitation was in child's best interest, and the parents were not married when child was born or at the time the visitation petition was filed.
The court also analyzed the constitutional and statutory factors, including the past relationship between child and respondent, respondent's motivation in seeking visitation, Kiel's motivation in denying visitation, the amount of visitation requested, and the potential adverse effects on child's usual activities. The court considered the factors, "giving deference to" Kiel's position and applying the presumption his decisions were in child's best interests. Also considering respondent's evidence, the court found it was in child's best interest to have visitation with respondent. The February 2015 Order continued previously ordered Skype visitation and awarded supervised visitation of two hours every three months.
In September 2015 plaintiffs moved to Orange County for improved medical care for child.
The February 2015 Order was modified in October 2015 by the Arizona court (October 2015 Order). After testimony by Kiel and respondent, the court again found the visitation with respondent was in child's best interest. It continued the Skype visitation and provided for supervised visitation in California for two consecutive days, two hours per day, every 90 days. The October 2015 Order denied Kiel's motion to discontinue visitation for 180 days.
In May 2016, Kiel again sought to terminate respondent's visitation with child. The Arizona court denied the request (May 2016 Order).
In April 2017, defendant's parental rights were terminated. In May 2017 plaintiffs got married. By 2018 Kiel terminated all visitation with respondent after child suffered additional medical problems. Respondent's attempts to resume visitation were unsuccessful.
In May 2018 Kiel registered the October 2015 Order in Orange County. He also filed in the Superior Court of Orange County a request for order to terminate respondent's visitation (RFO). In his declaration he stated child was "completely vulnerable and reliant on a caretaker for all of her daily needs." He also stated visitation with respondent was not in child's best interest. Skype calls were "very difficult" because it was hard for child to sit for 20 minutes listening to respondent speak Spanish, which child does not understand. He further stated, by the end of the conversation, many times child would be crying, saying, "all over, all over."
Randi also filed a declaration. She stated she had filed a petition to adopt child. She stated it was not in child's best interest to visit with respondent. Respondent was "in denial" about the extent of child's limitations and did not understand child would never go beyond the level of a 24- to 28-month old. Randi declared child's disabilities made it difficult for her to participate in Skype visits. In addition, when child returned from in-person visits she was often upset and confused. Further, respondent did not follow the visitation rules.
In her declaration in opposition, respondent argued Arizona still retained jurisdiction over the matter and requested the court communicate with the Arizona court as to jurisdiction. Respondent claimed Kiel was not abiding by the terms of the October 2015 Order and was interfering with her visitation and her relationship with child.
In November 2018 the Orange County court conducted a conference with the Arizona court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, during which Arizona relinquished jurisdiction to the Orange County court. Subsequently the Arizona case was transferred to the Orange County court.
Prior to the hearing on the RFO Michael J. Perrotti, Ph.D. (Perrotti), plaintiffs' expert, performed a neuropsychological assessment of child to determine her abilities and limitations and prepared a report. Miguel Alvarez, Ph.D. (Alvarez) was retained as respondent's expert to give an opinion on respondent's visitation and to review Perrotti's report. Alvarez prepared a report and a supplemental report, both of which were admitted into evidence at the hearing on the RFO.
The Perrotti report was admitted into evidence at the RFO hearing, although we could not find a copy of the report in the record.
Randi adopted child in February 2019, and in May 2019 the court ordered Randi joined in the proceedings on the first day of the hearing on the RFO. Several witnesses were called to testify at the hearing.
Kiel testified he wanted all contact between child and respondent to cease, stating child did not benefit from it. Kiel believed he, child's father, should determine whether visitation was appropriate and he did not believe it was. His objection to visitation was not in retaliation against respondent. Kiel testified child had a relationship with respondent since her birth and sometimes during visits she would refer to respondent as "grandma." Child had no relationship with plaintiffs' parents. Kiel did not believe it was a priority for child to have a relationship with all family members.
Kiel stated visitation with respondent was dangerous for child. In 2013 respondent had threatened to remove child from the hospital and take her to Mexico. In addition, respondent violated at least one visitation rule each visit, including speaking Spanish every time. Kiel believed everyone should speak to child only in English because it was the only language she may be able to understand.
Kiel testified child was extremely limited, both physically and cognitively. He was concerned further medical and personal complication would arise as child aged. She had experienced two grand mal seizures in 2018 and also suffered from petit mal seizures. She had osteoporosis, putting her at risk of broken bones if she were to fall. Her scoliosis persisted. She must wear braces throughout the day. Although he testified in his deposition he knew of no medical reason why child and respondent should not have contact, he now did not believe that to be true.
Kiel testified child attended a special education program five days a week for five hours. She also participated in equine therapy twice a week. Plaintiffs take child to the beach, the park, or the library after school. In addition, child's nanny takes her to the beach or on play dates.
Kiel testified he opposed the Skype visits. He did not believe child understood the concept, and the communication was not productive due to her limited attention span, which had been the same since 2015. Child never talked about the calls or visits with respondent. Further, child was overstimulated by the calls and would always be susceptible to overstimulation by sights and sounds. When the court asked if it were not true child would be overstimulated regardless of whom she was with, Kiel agreed.
Randi testified, repeating much of what Kiel had stated. Randi was opposed to contact between respondent and child. She reiterated that respondent did not follow visitation rules. Randi believed respondent placed her own needs above plaintiffs' and child's and minimized child's disabilities. Although plaintiffs did not marry until 2017, they dated since 2013 and Randi was present during the Arizona proceedings.
Randi viewed almost all of the Skype visits. During the calls often 10 of the 20 minutes was silence. Although respondent spoke, often child said nothing. After Skype visits with respondent, child was confused and had pain in her eyes. Child stated, "[A]ll done, Daddy, all done, Daddy. I'm all done." When child saw the Skype screen she began to cry. Child believed she would be punished by it. Child did not understand what happens with Skype.
Randi explained during visits with respondent child was confused, causing her to become overstimulated. Overstimulation resulted in child's lack of focus on critical things including breathing, walking, and not drooling. After visits "it takes a little while for [child] to recalibrate."
Randi testified the last face-to-face visit was in December 2017 and the last Skype visit was in June 2018. At that time child was in the middle of a multi-day sleep EEG to diagnose the location of her seizures. The visitation monitor, Dr. Linda Timmons (Timmons), and respondent both e-mailed to state Timmons did not feel comfortable going forward with visitation. According to Timmons, respondent had "pushed so hard" she was putting her own interests above child's. That was when Kiel stopped all visits. Thereafter respondent did not attempt to resume Skype visits.
After visits, child never spoke of them or mentioned missing anyone or hugs or the activities. She has never spoken about respondent and Randi has not noticed any long-term attachment to respondent. When the court suggested perhaps more visits would help, Randi objected once a week visits would be difficult to fit into child's schedule. She stated more visits would benefit only respondent.
Randi testified child had the same teacher at school for two years to avoid overstimulation. It took child six months to learn who she was. Child recognized parents, her nanny, and her school aide, who was with her all day at school. Child completely trusted plaintiffs. They had to repeatedly teach child the same things.
Randi stated respondent did not agree with plaintiffs as to what was best for child but believed she knew better. She did not work with plaintiffs to improve the relationship. She did not understand child's disabilities and minimized them.
Perrotti testified about his assessment of child. He reviewed child's medical records, educational records, and the visitation monitor's notes and visitation logs. He interviewed Randi and did a conjoint interview with plaintiffs. He also interviewed child with plaintiffs present for about 20 minutes. During the interview child became overstimulated leading to a brief "absence seizure" where child lost contact with him. During the interview child could not engage in a conversation with him and appeared confused.
Perrotti testified traumatic brain injuries are dynamic and evolve over a person's life. Continued evaluation was required. It was his opinion, due to her brain injuries, child's social cognition is impaired and she "lacks a theory of mind." She cannot understand other people's feelings, remember another person or construct a relationship. Her working memory was in the .2 percentile. Perrotti did not believe child will ever improve, cognitively or in her social functioning.
Perrotti did not believe there was any medical, emotional, therapeutic, healing, or social benefit to child having visitation with respondent. Visitation overstimulated child, leading to exhaustion and caused "continuing lethargy, continuing apathy." Records showed child was overstimulated in every visit with respondent. Further, child was faced with a completely new situation every 90 days when the visits occurred. Perrotti also opined the visits put child at risk for seizures.
Perrotti referred to a notation in the visitation log that child had hugged respondent and told her she loved her, stating this was "reflective of epiphora," that is a "meaningless repetition of what a person is saying." Love is an abstract idea and child cannot understand what it means.
Perrotti also thought visitation with respondent was dangerous to child. Respondent did not understand or accept child's disabilities and might "push[] her" to do things she was incapable of. For example, respondent did not believe child needed braces but child had balance problems and was a "fall risk." He was also concerned with respondent's continuing failure to abide by visitation rules, including bringing a telephone or blanket or wanting to take a picture, bringing admonishment from the visitation monitor.
Perrotti and Alvarez, respondent's expert, had a 15-minute conversation to try to find areas of agreement as to diagnostic issues. They agreed child had suffered a substantial traumatic injury and had "deficits in language, memory, [and] cognition across the spectrum of cognitive and learning abilities."
Alvarez testified as well. He did not perform any evaluations but reviewed child's medical records, the visitation records, and Perrotti's report. Alvarez testified respondent was a "critical component" of the visitation question and did not know how visitation recommendations could be made without knowing about how respondent functions and any of her issues or concerns.
Alvarez stated it would have been helpful to know the cause of the grand mal seizure because child's health and how she functions are important in determining visitation. Perrotti's report was unclear about how visitation could cause child's overstimulation except perhaps the amount of time. In addition, Perrotti's report was unclear about "how overstimulation [was] mitigated in other novel situations [child] encounters."
Alvarez questioned Perrotti's conclusions about visitation without his considering the relationship between respondent and child or other factors, including how child functions in other situations. Additionally, Perrotti's report did not explore alternatives for visitation or other contact. Alvarez did not believe the scientific research about the projected poor outcome of children with symptoms like child's precluded an attempt to enhance child's life by having contact with respondent. Nor did Perrotti's report explain how visitation between child and respondent was "uniquely detrimental" to child.
Alvarez saw nothing in the records that any professional cautioned against Skype visitation. Further, respondent's use of Spanish was not a problem.
Timmons testified she had been a visitation monitor for approximately 10 years and had monitored 19 visits between child and respondent. She was a mandated child abuse reporter and has never made a report about respondent.
Timmons testified about her reports where she stated respondent had almost immediately established a bond with child. When children are happy, when they smile, when they feel comfortable, there is a bond. She noticed those things about child and respondent. On one occasion after respondent told child she loved her child told respondent the same thing.
Timmons explained that during visits respondent and child sat and talked. Sometimes respondent read to child. They played games and puzzles.
Respondent testified she wanted her contact with child, which she had since child's birth, to continue. She understood defendant's parental rights had been terminated and Randi was child's mother. She still considered herself to be child's grandmother and would not give that up.
Respondent and child had a "love connection," a family connection, an affectionate relationship. Child called her grandma. Child recognized her, ran to her when she saw her, hugged her, and sang to her and had never rejected her. Respondent did not understand why doctors said child did not have a memory. She believed child knew who she was and wanted a relationship with her. She testified child benefited by having a relationship with a grandmother who loved her and attended to her.
After the hearing the court denied plaintiffs' RFO to terminate all visitation with respondent (Denial Order). The court summarized the proceedings that had occurred in Arizona, and particularly the grant of visitation to respondent. It noted the Arizona statute dealing with grandparent visitation substantially paralleled Family Code section 3104. (All further statutory references are to this code except as stated.) The Denial Order stated the Arizona court had engaged in a "very detailed analysis and well-reasoned statement" showing a historical relationship between respondent and child and also had addressed plaintiffs' motivations.
The court recounted Kiel's motion to discontinue visitation leading to the October 2015 Order denying it. It also referred to the May 2016 Order where the Arizona court found child's care had been and would continue to be "extensive and varied." The May 2016 Order also stated "both parties [i.e., Kiel and respondent] truly love and care about this child" and explained the Arizona court's intention to increase the amount of and relax restrictions on respondent's visits.
The court found grandparent visitation had "been established" in the Arizona courts and it would "give adequate and due deference to the order set forth in Arizona" pursuant to the Full Faith and Credit Clause of the United States Constitution (art. IV, § 1). It was "guided by" section 3104 in deciding the RFO.
The court found plaintiffs were relying on two substantial changes, the first being plaintiffs' marriage and the second the onset of child's grand mal seizures. The court ruled the marriage was not a substantial change in circumstances, relying on Fenn v. Sheriff (2003) 109 Cal.App.4th 1466.
The court also found the Arizona courts had addressed all constitutional arguments, noting none of the "multiple attacks" on the constitutionality of California's grandparent visitation statutes had been found to have merit. The court further held it was guided by established principles regarding grandparent visitation in cases, including Hoag v. Diedjomahor (2011) 200 Cal.App.4th 1008 and In re Marriage of Harris (2004) 34 Cal.4th 2010 (Harris).
The court considered the RFO Kiel's third request to terminate visitation with respondent and denied it. It upheld the supervised visitation of two consecutive days, two hours per day, every 90 days as set out in the October 2015 Order. The visitation rules remained in force. It vacated the Skype visitation and granted respondent audio contact for a maximum of five minutes per call once a month.
DISCUSSION
1. Standard of Review
We review visitation orders using a deferential abuse of discretion standard. (Ed H. v. Ashely C. (2017) 14 Cal.App.5th 899, 904 (Ed H.).) We reverse only if we find, "'"'under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did."'"' (Ibid.) We review the evidence in the light most favorable to the order. (Stuard v. Stuard (2016) 244 Cal.App.4th 768, 774 (Stuard).) The burden is on the appellant to show an abuse of discretion and a miscarriage of justice. (Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182.) 2. Statutes Regarding Grandparent Visitation
A grandparent's right to visitation is purely statutory. (Stuard, supra, 244 Cal.App.4th at p. 777.) There are three statutes governing grandparent visitation. Section 3102 provides for grandparent visitation when a parent is deceased. Section 3103 allows a court to grant grandparent visitation in specified child custody proceedings. (Ed H., supra, 14 Cal.App.5th at p. 907.)
Section 3104 permits a court to order grandparent visitation if the court finds a preexisting relationship between the child and the grandparent creating a bond so that visitation is in the child's best interest and the court balances the child's interest in visitation with the parents' right "to exercise their parental authority." (§ 3104, subd. (a)(2).) A petition for visitation may not be filed while natural or adoptive parents are married, except under certain circumstances, including where a stepparent has adopted a child. (§ 3104, subd. (b)(5).) If a change of circumstances occurs so that none of the circumstances set out in section 3014, subdivision (b)(5) exist, on a motion by parents to terminate grandparent visitation the court shall grant it. (§ 3104, subd. (b).) 3. Respondent's Status as a Grandparent
The primary basis for plaintiffs' arguments is that respondent is no longer child's grandparent. They contend once defendant's parental rights were terminated, respondent lost her status as a grandparent and any right to visitation with child. On that basis, plaintiffs assert, respondent had no standing to request and the court had no jurisdiction to order visitation. Plaintiffs' argument is not supported by authority. In fact, the opposite is true.
In Finberg v. Manset (2014) 223 Cal.App.4th 529 (Finberg), after the biological father's parental rights were terminated, the child was adopted by his stepfather. The mother of the biological parent petitioned for visitation under section 3104, subdivision (b)(5). A petition for grandparent visitation is barred under section 3104, subdivision (b) where the parents are married and living together but the limitation does not apply when "[t]he child has been adopted by a stepparent." (§ 3104, subd. (b)(5).) The trial court held section 3104, subdivision (b)(5) violated equal protection because there the statute made no rational distinction between families with adoptive parents and those with biological parents. On that basis it dismissed the grandmother's petition.
Finberg reversed. In the equal protection discussion the court used a rational basis scrutiny, not strict scrutiny, because section 3104, subdivision (b)(5) had "only an incidental effect on the exercise of parental rights." (Finberg, supra, 223 Cal.App.4th at pp. 536, 537.) It held the distinction in section 3104, subdivision (b)(5) between biological and adoptive parents had a rational relationship to a legitimate state interest in preserving grandparent relationships "'"where they are needed most."'" (Finberg, at p. 537.) It remanded to the trial court to reinstate the grandmother's petition and hold a hearing.
Thus, under Finberg a grandparent remains a grandparent with the right to seek visitation under section 3104, subdivision (b) even when the biological parent's parental rights have been terminated.
Plaintiffs did not discuss Finberg in their opening brief. Respondent cited it for the proposition that grandparent visitation is not automatically terminated when a stepparent adopts a child. In the reply brief plaintiffs engage in a lengthy, but futile, discussion of why Finberg and section 3104, subdivision (b)(5) do not apply.
Plaintiffs point to the reason behind enactment of section 3104, subdivision (b)(5). It was prompted by Lopez v. Martinez (2000) 85 Cal.App.4th 279. There, after the biological father disappeared, the mother and the child lived with her parents for several years. When the mother remarried and moved, the grandparents were granted visitation. After the stepfather adopted the child the court was required to terminate the visitation based on a change of circumstances under section 3104, subdivision (b). Subsequently the Legislature adopted section 3104, subdivision (b)(5). The analysis of the bill noted the subdivision was added to "'remove the possibility of a stepparent preventing visitation with the child by adopting that child.'" (Finberg, supra, 223 Cal.App.4th at p. 534.)
Plaintiffs argue Randi did not adopt child with the intent to foreclose respondent's visitation. But they fail to cite to the record to support this claim. California Rules of Court, rule 8.204(a)(1)(C) requires a party to cite to the record in support of any factual claim, including facts in the discussion portion of the brief. (Conservatorship of Kevin A. (2015) 240 Cal.App.4th 1241, 1253.) "'We have no duty to search the record for evidence and may disregard any factual contention not supported by proper citations to the record.'" (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1169, fn. 10.) Thus, we do not consider this argument. But even if there were a record reference to support it, that fact is irrelevant. Section 3104, subdivision (b)(5) does not require any showing of the motives of the adoptive parent.
And Finberg was not based on the "use[] and abuse[] [of] the adoption procedure" to interfere with the relationship between the child and the grandparent. Nor did the opinion discuss a disappearance of the biological father. In any event, it has no bearing on respondent's status.
Plaintiffs argue allowing respondent's visitation merely because Randi adopted child makes section 3104, subdivision (b)(5) unconstitutional as applied. But as plaintiffs concede, they never voiced this claim, either in the trial court or in their opening brief.
As-applied constitutional challenges must be raised in the trial court or they are forfeited. (In re Sheena K. (2007) 40 Cal.4th 875, 881-882, 886-887.) Moreover we do not consider arguments raised for the first time in a reply brief without a showing of good cause. (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115.)
Plaintiffs have not made such a showing. Their claim they raised the issues of jurisdiction and standing in the trial court does not suffice. Those have nothing to do with the constitutionality of the section. And the two federal cases plaintiffs cite to support their claim the argument can be raised for the first time on appeal are inapt. Aside from the fact we are not bound by federal cases (Haynes v. EMC Mortgage Corp. (2012) 205 Cal.App.4th 329, 335), Gilchrist v. Jim Slemons Imports, Inc. (9th Cir. 1986) 803 F.3d 1488 and Wolf v. Reliance Standard Life Ins. Co. (1st Cir. 1995) they deal with the very limited issue of waiver of an Employment Retirement Income Security Act preemption defense (Gilchrist, at p. 1497; Wolf, at p. 449 & fn. 8). Thus, plaintiffs' constitutional argument is doubly forfeited. It also fails on the merits.
Plaintiffs point to Troxel v. Granville (2000) 530 U.S. 57 (Troxel), where the court invalidated a Washington State statute that allowed visitation by any nonparent was unconstitutional as applied because it infringed on parents' fundamental right to raise their children. (Id. at p. 67.) The court noted the difference between the Washington statute and statutes in other states, including section 3104, subdivision (e), which includes the rebuttable presumption grandparent visitation is not in a child's best interest if the parents oppose it. (Troxel, at pp. 69-70.) Troxel does not affect visitation in this case.
None of the cases cited by plaintiffs in support of their claim respondent is no longer a grandparent stand for that proposition. In Ed H., supra, 14 Cal.App.5th 899 great-grandparents sought visitation under sections 3103 and 3104. After determining section 3103 did not apply because the proceeding had been brought after the judgment of dissolution (id. at p. 907), the court also held section 3104 did not apply to great-grandparents (id. at p. 909). Because the statute did not define "grandparent," the court relied on the ordinary meaning as defined in the dictionary, i.e., "'a parent's parent'" or "'a parent of one's father or mother.'" (Id. at p. 908.)
Plaintiffs' reliance on this definition is not well taken. Ed H. did not consider the question of whether a grandparent loses that status when parental rights are terminated. "'A decision, of course, does not stand for a proposition not considered by the court.'" (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.) Nor did Ed H. even mention Finberg, supra, 223 Cal.App.4th 529, which made clear a grandparent remains a grandparent for visitation purposes even after parental rights are terminated.
Likewise, W.S. v. S.T. (2018) 20 Cal.App.5th 132 is inapt. Plaintiffs claim the case stands for the proposition the court lacks jurisdiction to order visitation "once there is no actual relationship between an applicant therefor and the child." Not so. In W.S. the plaintiff filed an action to be declared the presumed father of a child and sought custody and visitation under section 3100. The court denied his petition and the order was upheld on appeal. (Id. at pp. 136-137.) The case did not involve grandparent visitation, and section 3100 has no application to our case.
Section 3100 allows the court to grant visitation "to any other person having an interest in the welfare of the child." (§ 3100, subd. (a).) But that section applies only when there is a joint custody order (Ed H. supra, 14 Cal.App.5th at p. 912), not the case here.
Similarly, Marckwardt v. Superior Court (1984) 150 Cal.App.3d 471 had nothing to do with grandparent visitation. It concerned a birth parent's petition for visitation with his biological children after they had been adopted by someone else. In addition, the case was decided before section 3104 was enacted in 1993.
Nor does Rich v. Thatcher (2011) 200 Cal.App.4th 1176, which denied grandparent visitation, apply. It was decided under section 3102 (id. at p. 1180), which applies only to situations where a parent is deceased.
Plaintiffs argue the court erred by failing to find respondent was no longer a grandparent. Not so. Again, respondent remains a grandparent. There is no authority that termination of defendant's parental rights changed respondent's status. We do not consider plaintiffs' contention respondent lost her status as a grandparent in Arizona when defendant's parental rights were terminated because they failed to provide authority to support the claim. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294; Cal. Rules of Court, rule 8.204(a)(1)(B).) 4. Termination of Visitation
Plaintiffs contend the court cannot grant visitation to third parties over parents' objection unless it gives "special weight" (italics omitted) to the parents' determination visitation is not in the best interest of the child. Citing Troxel, supra, 530 U.S. 57 they rely on the Fourteenth Amendment fundamental right of parents to decide about the "care, custody, and control of their children." (Id. at p. 65.) They claim the court here did not accord that special weight. This argument is without merit.
Section 3104 allows a court to order grandparent visitation if it finds a preexisting relationship between the grandparent and child creating a bond such that visitation is in the child's best interest and balances the child's interest in visitation against the parents' right to exercise their parental authority. (§ 3104, subd. (a).) The statute includes a rebuttable presumption grandparent visitation is not in child's best interest if the parents oppose it. (§ 3104, subd. (e).) This is the standard used when a grandparent files a petition for visitation.
And that was the standard used by the Arizona court when it considered respondent's petition for visitation and Kiel's attempts to terminate that visitation. As set out in the February 2015 Order the Arizona court gave deference to Kiel's objection to visitation and nevertheless ordered it as being in child's best interest. The Arizona statute relied on by the Arizona court contains a similar provision requiring the court to "give special weight" to the legal parents' opinion of what serves their child's best interests and consider a variety of factors including the historical relationship between the child and, in this case, the grandparent and the motivation of the parents in objecting to and the grandparent in seeking visitation. (Ariz. Rev. Stat. Ann. § 25-409, subd. (E).)
But here respondent did not petition for visitation. The case is before us on plaintiffs' RFO to terminate visitation. Once visitation has been ordered, it may be modified upon a showing of changed circumstances. (Harris, supra, 34 Cal.4th at p. 222.)
The court noted plaintiffs proffered two changed circumstances, their marriage and the onset of child's grand mal seizures, and found neither was a sufficient change. Plaintiffs had the burden to show the court abused its discretion in making these findings. They did not do so. Plaintiffs make no argument in their briefs as to why either of these were changes sufficient to warrant termination of visitation. Thus, plaintiffs forfeited any challenge to this finding. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.)
In denying the RFO, the court set out the analysis undertaken by the Arizona court in granting respondent visitation. Both the February 2015 Order and the October 2015 Order issued by the Arizona court found visitation with respondent was in child's best interest. The Denial Order specifically accorded deference to the Arizona orders. We must presume this included the special weight the Arizona court gave to Kiel's objections to visitation. That the court here accorded special weight to plaintiffs' objections is borne out by the decision to terminate Skype visitation. Thus, even though not required to do so, the court considered plaintiffs' objections.
And the fact plaintiffs objected is not an absolute bar to visitation. "'The decision of [parents] about whether and under what conditions grandparents should have visitation with their grandchildren is entitled to "special weight" under Troxel—assuming both are fit parents—but no more.'" (Stuard, supra, 244 Cal.App.4th at p. 784.)
Nor have plaintiffs overcome the Arizona finding that visitation was in child's best interest. Instead they rely merely on the arguments respondent is no longer a grandparent, which is not correct, and that they, as fit parents, oppose visitation, which, as stated above, is not sufficient. (Stuard, supra, 244 Cal.App.4th at p. 784.)
Relying on In re Marriage of Gayden (1991) 229 Cal.App.3d 1510 (Gayden), plaintiffs argue the visitation by a nonparent cannot be ordered unless clear and convincing evidence show denial of visitation would be detrimental to the child. They contend respondent made no such showing.
But Gayden did not concern grandparent visitation. Further, it was decided before the enactment of section 3104 and was decided under former Civil Code section 4601, the predecessor to section 3100, that allowed for visitation by a nonparent having an interest in a child's welfare. (Gayden, supra, 229 Cal.App.3d at p. 1516.) As discussed above, section 3100 is not specific to grandparent visitation, applies only when there is a joint custody order (Ed H. supra, 14 Cal.App.5th at p. 912), and does not govern our case. Further, Gayden did not concern a request to modify visitation but decided a petition for visitation. Plaintiffs have not explained why Gayden applies here. 5. Miscellaneous Arguments
Plaintiffs heavily emphasize the fact defendant is still living and the court's failure to consider it. Section 3102 provides for grandparent visitation upon the death of a parent. But that section plainly does not apply. Visitation was never granted on that basis nor did the court cite section 3102 in support of its order. Thus, plaintiffs' reliance on Huffman v. Grob (1985) 172 Cal.App.3d 1153, which concerned visitation under the predecessor to section 3102, i.e., former Civil Code section 197.5, is misplaced.
Plaintiffs' arguments about de facto parent status and visitation under section 3100 also are not persuasive. There is no question of or argument about de facto parent status. And, as stated above, section 3100 does not apply. Likewise, Curiale v. Reagan (1990) 222 Cal.App.3d 1597 and White v. Jacobs (1988) 198 Cal.App.3d 122, which plaintiffs cite to support their claim the court has jurisdiction only if custody or visitation is at issue, are not helpful. Contrary to plaintiffs' claim, respondent's visitation with child is at issue.
Plaintiffs unsuccessfully challenge cases on which the court relied. As to Fenn v. Sherriff (2003) 109 Cal.App.4th 1466 (Fenn) they argue neither section 3102 nor section 3104 allow for visitation by respondent. As noted above, we agree section 3102 does not apply because it permits grandparent visitation on the death of a parent, not the case here.
As to section 3104, plaintiffs miscite it, arguing if parents are married and living together and neither parent joins in a petition for visitation, a grandparent may not file a petition for visitation. But plaintiffs fail to mention a petition may be filed if child has been adopted by a stepparent. (§ 3104, subd. (b)(5).) Further, as we have explained, this case involves a petition to terminate visitation, not a petition seeking visitation.
Moreover, in the hearing the court explained why it was citing Fenn. In Fenn, the father moved for summary judgment on the ground he and his wife, who had adopted a child, were fit parents who both opposed grandparent visitation by the parents of the deceased biological mother of the child. The court here stated plaintiffs, as fit parents living together, were arguing the court had no power to order grandparent visitation over their objection. (Fenn, supra, 109 Cal.App.4th at p. 1471.) It noted Fenn disagreed with that argument. The court did not err in citing Fenn.
Plaintiffs also try to distinguish Hoag v. Diedjomahor (2011) 200 Cal.App.4th 1008 (Hoag) and Harris, supra, 34 Cal.4th 2010 by setting out factual differences between them and our case. But the court relied on those cases for "legal principles" regarding grandparent visitation.
In Harris, the trial court granted visitation to the paternal grandparents over the objection of mother, who had sole custody. The court held section 3104, not section 3103, applied (Harris, supra, 34 Cal.4th at p. 223), and further held section 3104 was not unconstitutional on its face (Harris, at p. 226) or as applied in the case (id. at p. 227). It remanded the case to the superior court to consider whether, under section 3104, subdivision (f), grandparents had overcome the rebuttable presumption that visitation was not in the best interest of the child (id. at p. 230).
In Hoag, the court discussed several cases dealing with parental objections to grandparent visitation, concluding, "'A custodial parent's decisions regarding visitation are entitled to presumptive validity and must be accorded "special weight," but they are not immune from judicial review.'" (Hoag, supra, 200 Cal.App.4th at p. 1016.)
The trial court here properly considered the "legal principles" in both Harris and Hoag. Moreover, in reviewing the Denial Order, we rely on the result, not the court's reasoning (Goles v. Sawhney (2016) 5 Cal.App.5th 1014, 1021), and thus we may affirm an order on any proper legal ground, regardless of the trial court's rationale (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 993).
California Rules of Court rule 8.204(a)(1)(B) requires each point to be contained within a discrete section with a separate heading. Many of plaintiffs' arguments are repeated throughout the briefs and not necessarily set out under relevant headings. Thus, although we tried to address all the arguments, if we missed any they are forfeited based on violation of this rule. (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 166.)
DISPOSITION
The order is affirmed. Respondent is entitled to costs on appeal.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.