Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. PR15885 & FL074800.
RUSHING, P.J.
Joseph Colapietro is the father of A.C., a developmentally disabled adult born with Down Syndrome. Anna Trechter is A.C.’s Aunt. Joseph and Anna brought a petition in the trial court for conservatorship of A.C. A.C.’s mother and sister, Pamela and Sara DeAngelo brought a competing petition for conservatorship. Pamela and Sara prevailed, and were appointed conservators of A.C. Joseph and Anna appeal this decision.
Statement of the Facts and Case
This case arises out of competing petitions for conservatorship of A.C.
As background, in 1998, respondent Pamela DeAngelo filed a petition for dissolution of marriage from her husband, A.C.’s father, Joseph Colapietro. At the time, A.C. was 10 years old, and her sister Sara, was 15 years old. Jospeh had weekly visitation with A.C.
In July 1999, A.C. reported to a therapist that Joseph had touched her vagina, and showed her his penis and asked her to touch it. A.C. also said that Joseph told her that if she told anyone about it, he would hurt her mother and her sister. As a result of these allegations, in 2000, the trial court issued a three-year restraining order that precluded Joseph from any visitation with A.C. In 2003, the trial court renewed the three-year restraining order precluding Joseph from visitation.
In 2007, Pamela and Sara filed requests for a third renewal of the restraining order. The trial on the renewal of the order took place in December 2007. At the conclusion of trial, the court renewed the restraining order limiting Joseph’s contact with A.C., but allowed court-ordered visitation and therapeutically supervised visitation was initiated by A.C. In its statement of decision regarding the renewal of the order, the court found there was “a reasonable and objective fear of future abuse by Joseph Colapietro and further, there is a sufficient risk of future abuse to warrant the renewal....”
In December 2007, Joseph and his sister, Anna Trechter, (appellents) filed a petition for conservatorship of A.C. In January 2008, Pamela and her daughter, A.C.’s sister, (respondents) filed a competing petition for conservatorship of A.C.
Trial of the conservatorship petitions took place in February 2009. At the beginning of trial, respondents moved to exclude witnesses, including A.C. A.C.’s appointed counsel joined in the motion, arguing it was not in A.C.’s best interest to attend the hearing. Appellants opposed the motion.
The trial court granted respondents’ motion to exclude A.C., finding it was not in her best interest to attend the proceeding, and noting that it had observed A.C. become agitated during the prior proceedings in December 2007 for the restraining order.
At the conservatorship trial, a number of witnesses testified, including the court appointed investigator, Brandon Garcia. Mr. Garcia testified that A.C. was “content... and well cared for, ” in the home of respondents. Mr. Garcia further stated that A.C. seemed to get along with respondents, and that she expressed a desire to continue to live with them, and a preference that they be appointed her conservators. A.C. repeated her accusations of sexual abuse by her father to Mr. Garcia, who testified that A.C.’s fear of her father seemed genuine and not the result of pressure by respondents. Mr. Garcia opined that A.C. would not be comfortable living with appellants, because she did not have a close relationship with them. Mr. Garcia believed respondents should be appointed conservators over A.C.’s medical treatment, finances, and access to confidential information. He did not recommend they be granted power to decide A.C.’s residency, education, or social contacts.
At the conclusion of the trial, the court granted respondents’ conservatorship petition, and denied appellants’ petition. On January 16, 2009, appellants requested a statement of decision. On January 28, 2009, the court filed its statement of decision and order appointing respondents conservators of A.C.
On February 5, 2009, appellants filed objections to the statement of decision. On Feburary 13, 2009, appellants filed a motion to vacate the order of conservatorship, to reopen the case, and for a new trial. Respondents filed an opposition to the motion. The trial court did not rule on the motion, and it was deemed denied by operation of law on March 30, 2009 under Code of Civil Procedure section 660.
Appellants filed a notice of appeal on April 28, 2009.
Discussion
Appellants assert the judgment should be reserved for the following reasons: (1) the trial court did not issue a proper statement of decision; (2) A.C. should not have been excluded from the proceedings; (3) respondents should not have been appointed A.C.’s conservators because they engaged in dependent abuse by keeping A.C. in isolation; and (4) Joseph should have been granted visitation of A.C. to stop the dependent abuse perpetrated by respondents. Respondent asserts the appeal should be dismissed, because it was not timely filed.
Timeliness of the Appeal
Respondents assert the appeal must be dismissed because it was untimely filed. The basis for respondents’ argument is that appellants failed to file their notice of appeal within the statutory period of 60 days from the date of entry of judgment. In addition, respondents argue appellants’ filing of a motion for a new trial that would have automatically extended the period to file a notice of appeal by 30 days was one day late.
The record shows that the statement of decision and order of conservatorship in this case were filed on January 28, 2009. California Rules of Court, rule 8.104, subdivision (a) provides that a notice of appeal must be filed within 60 days, in this case, March 30, 2009. The notice of appeal in the present case was filed after that date, on April 28, 2009.
However, California Rules of Court, rule 8.108, subdivision (b)(1)(A) provides that the filing of a “valid notice of intention to move for a new trial” extends the time to file a notice of a appeal until 30 days after the denial of a motion for a new trial. Here, respondents assert the notice of motion for a new trial was invalid, because the last day for its timely filing was February 12, 2009, and the notice was filed one day late, on February 13, 2009.
While it is true that appellants’ notice of motion for a new trial was filed on February 13, 2009, this fact does not make it invalid as untimely. February 12 is a court holiday as mandated in Government Code section 6700, and is specified as “Lincoln Day.” Further, Code of Civil Procedure section 12a, subdivision (a) provides: “If the last day for performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day which is not a court holiday.” Therefore, because the final date for filing the notice of motion for a new trial fell on February 12, 2009, a court holiday, that date was extended to the next court day, February 13, 2009. Appellants met this deadline in filing their notice of a motion for a new trial on February 13, 2009.
Because appellants filed a valid notice of motion for a new trial, the deadline for filing a notice of appeal was extended to 30 days after the denial of the motion under California Rules of Court, rule 8.108, subdivision (b)(1)(A). Here, the motion for a new trial was never ruled upon, and therefore, was deemed denied by operation of law on March 30, 2009 under Code of Civil Procedure section 660. As a result, the deadline for filing the notice of appeal was extended to April 29, 2009. Appellants timely filed their notice of appeal on April 28, 2009.
Statement of Decision
Appellants assert the judgment should be reversed, because the trial court failed to issue a proper statement of decision.
Code of Civil Procedure section 632 provides in part: “In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.”
Here, appellants timely requested a statement of decision on January 16, 2009, following the trial court’s issuance of its tentative ruling at the conclusion of trial on January 9, 2009. Appellants’ request asked for findings on the following issues: (1) jurisdiction; (2) the basis for excluding A.C. from the hearing; (3) the need for the conservatorship; (4) the basis for appointing respondents as co-conservators; and (5) the basis for granting respondents the powers they were given as co-conservators, with a description of any limitation on their powers.
The court issued a statement of decision that addressed all the issues appellants’ requested on January 28, 2009 in compliance with Code of Civil Procedure section 632. However, appellants assert this filing was insufficient, because (1) respondents prepared it, and were not designated to do so; (2) the proposed statement of decision was filed without providing appellants an opportunity to file objections; and (3) the court’s premature filing of the statement of decision was an irregularity in the proceedings requiring a new trial under Code of Civil Procedure section 657, or reopening the case for further proceedings under Code of Civil Procedure section 662.
Initially, it should be noted that the record does not support appellants’ assertion that respondents were not designated to prepare the statement of decision. At the end of the trial, the record reflects that the trial court stated: “I will ask [respondents’ counsel] and [A.C.’s counsel] to prepare the written orders and findings.”
Appellants’ second argument is that the judgment must be reversed, because the statement of decision is invalid, having been signed and filed prematurely, without giving appellants an opportunity to file objections. Here, respondents served the proposed statement of decision on appellants on January 26, 2009, and the court signed the filed the decision two days later on January 28, 2009.
Here, the trial court did file the final statement of decision prematurely. California Rules of Court, Rule 3.1590, subdivision (f) provides that appellants have 15 days from the filing of the proposed statement of decision to file objections thereto. In addition, the final statement of decision must be filed within 10 days after the expiration of the time for filing objections to the proposed judgment. (Cal. Rules of Court, Rule 3.1590, subd. (g)). The court’s filing of the final decision two days after its proposed decision did not provide appellants the full 15 days during which to file objections under the Rules of Court.
However, the fact that the final statement of decision was filed prematurely does not itself establish that the judgment should be reversed. “[T]he premature signing of a proposed statement of decision does not constitute reversible error unless actual prejudice is shown.” (Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292.) Moreover, “[t]he main purpose of an objection to a proposed statement of decision is not to reargue the merits, but to bring to the court’s attention inconsistencies between the court’s ruling and the document that is supposed to embody and explain that ruling.” (Ibid.)
While the final statement of decision was filed prematurely in this case, appellants did, in fact, file objections thereto. However, the actual objections to the statement went to the merits of the court’s decision, and did not “bring to the court’s attention inconsistencies between the court’s ruling, ” and the statement of decision filed. (Heaps v. Heaps, supra, 124 Cal.App.4th at p. 292.) Because there was no showing that the statement of decision did not conform to the court’s ruling, there was no actual prejudice in the court’s premature filing here.
Finally, appellants assert the judgment should be reversed and a new trial ordered under Code of Civil Procedure section 657, because the premature filing of the statement of decision was an irregularity in the proceedings.
Code of Civil Procedure, section 657, provides, in relevant part: “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of the party: 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.”
There is nothing in the record showing that appellants were “prevented from having a fair trial, ” as required by Code of Civil Procedure section 657, due to the irregularity of the court prematurely filing its final statement of decision. Therefore, there are no grounds to reverse the judgment and order a new trial.
A.C.’s Absence From the Hearing
Appellants assert the trial court erred in proceeding with the conservatorship hearing without A.C.’s presence.
A.C.’s appointed counsel files a response brief in this case, wherein she argues appellants do not have standing to assert A.C. was improperly excluded from the courtroom during the trial. In addition, A.C.’s counsel joins in the arguments asserted in respondents’ brief.
At the hearing on January 8, 2009, Pamela brought a motion in limine to exclude witnesses during the hearing, including A.C. A.C.’s appointed counsel joined in the motion, representing to the court that A.C.’s preference was that the court appoint respondents as her conservators. Joseph objected to the motion.
The court considered the testimony of the court investigator, Brandon Garcia regarding A.C.’s presence at the hearing. Mr. Garcia stated that A.C. did not wish to attend the hearing, and that she did not object to respondents being appointed her conservators. He also testified that her therapist had reported that A.C. was experiencing anxiety and nightnares about coming to court.
In ruling that A.C. could be excluded from the proceeding, the court found that she had psychological issues affecting her ability to attend court proceedings, and that her wishes in this case that respondents be appointed her conservators were made clear. The court also noted that A.C.’s counsel waived her appearance at the conservatorship hearing.
The arguments regarding A.C.’s presence at the conservatorship proceedings were based on the provisions of Probate Code section 1825, which provides that proposed conservatees shall be produced at the hearing on their conservatorship unless certain exceptions are present. The parties are in conflict about whether the exceptions are present in this case.
A.C. argues in her response brief that appellants did not have standing to assert her exclusion from the proceedings violated Probate Code section 1825. Citing In re Desiree M, et al. v. Rebecca M. (2010) 181 Cal.App.4th 329, 333 (Desiree), A.C. asserts appellants cannot contest an order that does not injuriously affect them. In Desiree, a mother challenged an order terminating her parental rights on the ground that her two children, Desiree and Denise, had not been notified of the termination hearing in violation of Welfare and Institutions Code section 294, subdivision (a)(3). (Id. at pp. 331-332.) The court found that the mother did not have standing to assert the rights of her daughters, noting that both girls had attorneys and had not appealed. (Ibid.)
Here, similarly, A.C.’s counsel argues on appeal that appellants do not have standing to assert A.C.’s right to be present at the hearing under Probate Code section 1825. In addition, A.C. does not appeal the court’s decision to exclude her from the proceedings. Finally, despite the exclusion order, appellants were not precluded from calling A.C. as a witness at the trial, which they chose not to do.
We find the court did not err in excusing A.C.’s presence during the trial.
Appointment of Respondents as A.C.’s Conservators
Appellants assert the trial court erred in appointing respondents as conservators in this case, because they committed dependent abuse of A.C., specifically, by keeping her isolated in violation of Welfare and Institutions Code, section 15610.43. The isolation was achieved by withholding A.C.’s mail from certain family members, restricting family visits with A.C., and pretending to move her to Oregon.
Welfare and Institutions Code, section 15610.43, subdivision (a) defines isolation, in part as: “(1) Acts intentionally committed for the purpose of preventing, and that so serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.” Welfare and Institutions Code, section 15610.43, subdivision (c) provides that acts that might be considered isolation are not dependent abuse when they are done “in response to a reasonably perceived threat of danger to property or physical safety.”
The record shows that appellant Pamela DeAngelo withheld certain pieces of mail from A.C., and restricted some family visits. However, such actions did not constitute improper isolation in violation of the law, because they were done “in response to a reasonably perceived threat of danger to… [A.C.’s] physical safety.” (Wel. & Inst. Code, § 15610.43, subd. (c).) Pamela acted with the approval and knowledge of the social worker assigned to A.C.’s case, Patricia Brown, who reviewed the mail before it was presented to A.C. Ms. Brown opined that Pamela was acting in A.C.’s best interest in withholding mail, because A.C. was emotionally fragile and was unable to handle certain types of communications from family members.
In addition, the court appointed investigator, Brandon Garcia testified that Pamela’s actions in withholding mail and restricting family visits were appropriate in this case, and did not constitute isolation. He opined that certain pieces of mail and family visits could be harmful to A.C., and Pamela acted in A.C.’s best interest in restricting these.
Finally, appellants’ assertion that by pretending to move A.C. out of state to Oregon, respondents engaged in dependent abuse is without support in the record. There is nothing to suggest that any “pretend” move out of state caused “physical harm or pain or mental suffering, ” as required under Welfare and Institutions Code, section 15610.07 in cases of isolation.
The superior court’s discretion in the selection of a conservator generally must “be guided by what appears to be for the best interests of the proposed conservatee.” (Prob. Code, § 1812, subd. (a).) Moreover, a trial court’s exercise of discretion in appointing a conservator must be supported by substantial evidence, and the appellate court must “resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court’s findings.” (Bookout v. Neilsen (2007) 155 Cal.App.4th 1131, 1137-1138.)
Here, the court considered the evidence and determined the appointment of respondents as conservators would be in A.C.’s best interest. The record does not support appellants’ assertion that respondents committed dependent abuse of A.C. barring their appointment as her conservators.
The court was presented with the fact that A.C. had lived with respondents since her birth, and had a very loving relationship with them both. A.C. was able to participate in many activities while in respondents’ care, and was always provided appropriate health treatment and care. Notably, A.C. herself expressed her desire to continue living with appellants.
In addition, the court investigator, Brandon Garcia testified that he believed respondents were providing a “suitable living environment” for A.C., and that she appeared “content... and well cared for.”
There was substantial evidence to support the court’s decision to grant respondents’ petition for the conservatorship of A.C., and that such appointment was in A.C.’s best interest. The court did not abuse its discretion.
Failing to Order Visitation for Joseph
Appellants assert the trial court abused its discretion in failing to order visitation for A.C.’s father, Joseph. Joseph seeks visitation with A.C. so that he can stop the alleged dependent abuse.
The weakness in appellants’ argument is that the court specifically ordered that as an adult, A.C. has the right to control her own social contacts, stating it is “up to [A.C.] to make those decisions from now on.” The court also stated that as her conservators, respondents have no right to control A.C.’s social interactions.
Because A.C. is an adult, with the power to control her own contacts, there is no “visitation” order that could be made. There is no bar on A.C. seeing Joseph if she so chooses. The court did not err by failing to order visitation with Joseph.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.