Opinion
F052768
8-8-2008
SHANE FERGUSON, Plaintiff and Respondent, v. MICHAEL LOPETEGUY et al., Claimants and Appellants.
Lascher & Lascher, Wendy C. Lascher, for Defendants and Appellants. Ira L. Stoker, for Plaintiff and Respondent.
Not to be Published
Michael and Joy Lopeteguy appeal from an order denying them visitation rights with their granddaughter after the death of their son Michael Todd Lopeteguy (Todd), the minor childs father. On appeal, they contend that the superior court erred when it believed that it did not have discretion to award them visitations rights. For the following reasons, we reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
The childs parents were in a relationship for 10 years before separating. During some of this time, the child and her parents lived in the Lopeteguys home. Even after the parents separated, the Lopeteguys had almost daily interactions with their granddaughter.
In June of 2003, the mother, Shane, filed a petition requesting joint legal and physical custody of the child, who was six years old and was living with Todd at the time. After mediation, the petition was granted on October 27, 2003. Shane received primary custody and Todd was ordered to pay monthly child support.
Shane then married Jason Obee. Shortly thereafter, the child told Todd, her grandmother and the police that her stepfather had molested her. Shane apparently agreed to let the child live with Todd pending the investigation into these allegations. Nevertheless, on January 28, 2004, Shane filed an order to show cause to require Todd to return the child to her custody. In response, Todd sought primary custody of the child. The superior court appointed counsel for the child in the custody case between Todd and Shane. The case was referred to Child Protective Services (CPS) on September 8, 2004 for investigation.
Todd died of an acute asthma attack on September 15, 2004 during the pendency of the CPS investigation into the allegations against Jason Obee. Shane then took over custody of the child and, according to the Lopeteguys, refused to allow them visitation with the child.
On September 6, 2005, the grandparents filed a motion for joinder in the custody case seeking finality to the CPS investigation and filed a petition for visitation rights. On September 15, 2005, CPS concluded that the report of sexual abuse was unfounded.
The superior court granted the petition for joinder and referred the case to mediation. After briefing, the court initially heard the parties in chambers and concluded that evidence should be presented. An evidentiary hearing was held on June 22, 2006, at which the Lopeteguys and Shane testified. During this time period, the court allowed the Lopeteguys four-hour supervised visitation periods.
On October 26, 2006, the childs attorney recommended restoring communication between the Lopeteguys and the child but did not recommend court-ordered physical visitation. The childs attorney stated that: "There were no facts provided at the hearing to demonstrate that Shane Ferguson (Obee) is an unfit parent and incapable of making decisions with regard to her daughter that are in her best interests. While I do believe that a continued relationship between the minor child ... and her grandparents is in the minor childs best interest, I defer to the discretion of her mother as to when and where actual physical visitation shall take place."
On December 22, 2006, the superior court denied the grandparents petition. Its minute order stated:
"The court finds that the mother Shane (Ferguson) Obee is a fit and proper parent and as such the court is not allowed to interfere with or question her decisions with regard to visitation of the minor [child] by the claimants. In other words the court has no authority to over rule the mothers decisions in this regard and the claimant[s] motion for grandparent visitation is denied." (Italics added).
The court entered "Findings and Order After Hearing" containing similar language, and no additional findings, on January 16, 2007.
The Lopeteguys filed their notice of appeal on April 26, 2007, and amended it on May 1, 2007.
DISCUSSION
On appeal, the Lopeteguys contend that the superior courts decision should be reversed because the superior court was unaware that it had discretion to award them reasonable visitation rights under Family Code section 3102. We agree.
"`[A] ruling otherwise within the trial courts power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations]. [Citation.]" (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 392.) "`Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.] [Citations.]" (Ibid.)
Section 3102, subdivision (a), provides that: "If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the childs minority upon a finding that the visitation would be in the best interest of the minor child." (Italics added.) Thus, the superior court has discretion to award the Lopeteguys reasonable visitation if it finds that the visitation would be in the best interest of the child. We are not persuaded that the record shows that the superior court exercised its discretion to make a finding on the best interest of the minor child.
Here, the superior court concluded that because Shane is "a fit and proper parent," it has no discretion to grant reasonable visitation. However, the factual finding that the mother is a fit and proper parent does not necessarily preclude the superior court from also finding that reasonable visitation by the grandparents would be in the best interest of the minor. Rather, the case law indicates that a superior court should presume that a fit and proper parent acts in the best interest of the minor child. (Troxel v. Granville (2000) 530 U.S. 57 (Troxel).) As the U.S. Supreme Court plurality stated, where the State wishes to intrude into the determinations of a fit parent about visitation rights, it must give special weight to the parents decision. (Id. at p. 69.) Thus, the U.S. Supreme Court plurality did not preclude a superior court from granting grandparents reasonable visitation rights. Rather, it required that special weight be given to the custodial parents wishes. The plurality also cited section 3104, subdivision (e), which provides that there is a rebuttable presumption that grandparent visitation is not in childs best interest if parents agree that visitation rights should not be granted, as a state law that follows the traditional presumption that a fit parent acts in the best interest of the child. (Id. at p. 70.) Thus, there may be some circumstances where a superior court may grant the grandparents reasonable visitation even if the parent is a fit and proper parent. (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1479.)
A relevant factor for the superior court to consider is whether the parent unreasonably denies any and all visitation rights. For example, in Troxel, the U.S. Supreme Court plurality noted that "there is no allegation that [the mother] ever sought to cut off visitation entirely. Rather, the present dispute originated when [the mother] informed the [grandparents] that she would prefer to restrict their visitation with [the minor children] to one short visit per month and special holidays." (Troxel, 530 U.S. at p. 71.) The U.S. Supreme Court concluded that the failure to take this fact into consideration, among other things, showed that the trial court failed to give special weight to the mothers decision about visitation rights. (Id. at p. 71-72.) The plurality found it significant that "many other States expressly provide by statute that courts may not award visitation unless a parent has denied (or unreasonably denied) visitation to the concerned third party." (Id. at p. 71; see also Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 863 [finding section 3102 unconstitutional as applied because, among other things, the father "agreed that visitation was appropriate, agreed that [the child] needed a relationship with the grandparents, and agreed to allow visitation with them ...."])
We note, however, that the mere opposition to grandparent visitation does not render an otherwise fit parent an unfit parent. (Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242, 153 (Zasueta)). Moreover, opposition to grandparent visitation should not automatically be considered a factor in favor of visitation. (Id. at p. 1255.) Thus, the opposition of the parent to grandparent visitation should be reviewed with deference; the trial court cannot presume that grandparent visitations always benefit the child. (Id. at p. 1253.) Rather, the grandparents have the evidentiary burden to show that their visits would benefit the child. (Id. at p. 1254.) Zasueta restates the law codified in the Family Code: In cases where a parent opposes visitation, there is a rebuttable presumption that grandparent visitation is not in the best interest of the minor child. (§ 3104, subd. (e).)
However, Zasueta does not hold that the opposition to grandparent visitation by a fit parent renders the superior court without authority to overrule the mothers decision about grandparent visits. Rather, the grandparents have the burden of rebutting the presumption found in section 3104, subdivision (e), that their visits are not in the best interest of the child. The superior court erred when it concluded that it "has no authority to overrule the mothers decisions in this regard." Therefore, we reverse and remand to the superior court to reconsider its decision and make the necessary findings about whether or not grandparent visitation would be in the best interest of the minor child.
DISPOSITION
The judgment is reversed.
We concur:
LEVY, J.
DAWSON, J. --------------- Notes: All further section citations are from the Family Code, unless otherwise stated.