Opinion
D068401
01-24-2017
Guardianship of J.A., Minor. S.K., Petitioner and Appellant, v. D.N., Petitioner and Respondent.
S.K., in pro. per., for Petitioner and Appellant. No appearance for Petitioner 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2013-00074697-PR-GP-CTL) APPEAL from orders of the Superior Court of San Diego County, Jeffrey S. Bostwick, Judge. Affirmed. S.K., in pro. per., for Petitioner and Appellant. No appearance for Petitioner and Respondent.
Petitioner and appellant S.K. (Mother) appeals a probate court order concerning her daughter J.A. (Child; born in Dec. 2010), placing Child under the guardianship of petitioner and respondent D.N. (Respondent), who is not a relative, except she is the paternal aunt of Child's half-sister (an older daughter of Mother). (Prob. Code, § 1510; all further statutory references will be to the Probate Code unless noted.) In 2013, while Mother was incarcerated, she agreed that Respondent should temporarily care for then three-year-old Child, but Mother now seeks to overturn the guardianship, custody and visitation orders issued in May 2015. (§ 1301, subd. (a) [appealable order]; Fam. Code, § 3040 et seq. [related child custody statutory scheme].)
Representing herself on appeal, Mother expresses a preference for this case to be handled in juvenile dependency court. She contends the probate court's orders are reversible per se based on denials of her statutory or due process rights, and "the totality of the evidence does not support the trial court's decision of permanent guardianship without an assessment from Child Welfare Services." Respondent has not filed a brief on appeal.
Our review of the record shows that the probate court followed appropriate investigative and hearing procedures, and there was no evident abuse of judicial discretion or any lack of support in the evidence for the orders. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. 2013 Temporary Guardianship Applications; 2014 Hearings
In the summer of 2013, Mother prepared to served a year-long sentence of local custody by arranging for Child to live with Mother's older daughter, half-sister T.M. ("the half-sister"). Child's father M.A. (the father) was also incarcerated and not involved in the decision.
Respondent is the half-sister's paternal aunt, and she and Mother heard from relatives that the half-sister was being unaccountable for Child and having difficulty with her new responsibilities. After about a month, Mother called Respondent from the jail and they discussed whether Respondent should take over caring for Child. Mother believed this was an informal arrangement, and Child started to live part-time at Respondent's and other relatives' homes from August 13, 2013 until November 2013, when she settled in with Respondent. She started preschool.
In October 2013, Respondent came to see Mother at the jail. Mother now contends that Respondent coerced her into signing a nomination of guardianship form, and misrepresented to her the purpose of the visit and the form. The father's consent was not sought. On November 8, 2013, Respondent, in propria persona, filed a petition seeking temporary guardianship, using the signed consent form, but did so allegedly without telling Mother. At the same time, Respondent was bringing a separate lawsuit about housing discrimination because her landlord did not want children at the rental. The court took off calendar the scheduled hearings on her petition in November 2013 and January 2014.
In February 2014, Respondent filed two amended petitions to seek guardianship of Child's person (not her estate, of which she had none). The court issued an order that since Respondent was not a relative, the Health and Human Services Agency (HHSA) should conduct an evaluation. (§ 1543.) At a hearing on March 5, 2014, the court made a referral to Family Court Services (FCS) for investigation, and continued the hearing on the appointment of the temporary guardian until May 2014. On March 14, 2014, the court ordered that Respondent be appointed temporary guardian, and issued temporary letters of appointment. Mother was to appear telephonically on May 14, 2014, since she was still incarcerated. The FCS filed a report on April 30, 2014.
On May 12, 2014, at the request of Mother, her own mother B.M. (Grandmother) filed a competing petition seeking appointment as temporary guardian. At a hearing on May 14, 2014, the court made visitation orders that Respondent should take Child once a month to the jail facility for supervised visitation with Mother, which she did. Grandmother was to have reasonable visits as agreed upon with Respondent. The hearing on the two petitions was continued until December 17, 2014, and another FCS referral was made. A supplemental FCS report was filed July 10, 2014. The register of actions shows an HHSA document was filed December 4, 2014.
Mother was released from custody in November 2014 and began to have visits with Child that were supervised by a visitation monitor. She filed a petition to terminate Respondent's appointment as guardian, as did the father. Although Grandmother was entitled to unsupervised visitation, the parties had numerous troubles carrying out the visitation schedule. Grandmother filed ex parte applications in November 2014 and again in January 2015, seeking to enforce the May 2014 visitation orders. In orders dated December 17, 2014 and January 13 and 14, 2015, the parents' petitions to terminate the guardianship were denied and the visitation arrangement was kept in place. The hearings were continued until April 24, 2015.
According to a declaration filed in December 2014 by Respondent, the trial court had ordered her in May 2014 to contact the child welfare services guardianship unit to complete a probate investigation. Although she contacted the guardianship unit, she was told in November 2014 that no report would be prepared because she did not pay the fee for the investigation. The record on appeal does not contain the two FCS reports or a HHSA report or recommendation, although the three documents are referenced in the register of actions.
As shown in the clerk's transcript, in February 2015, Respondent stopped cooperating with visitation, on the grounds that Child did not want to see Mother or Grandmother and claimed they had neglected or sexually abused her. The court kept the orders for unsupervised visitation with Grandmother in place. The next hearing was set for April 24, 2015.
B. 2015 Hearing and Ruling
A contested hearing on the competing guardianship petitions by Respondent and by Grandmother, as well as Respondent's additional petition for an order on guardianship visitation, began April 24, 2015 and was completed on May 4, 2015 (two half-days). The court explained that the hearing was to determine whether the temporary orders should be converted into a general guardianship. The court heard testimony from Mother, Respondent, Grandmother, and the visitation monitor. The court examined the witnesses, as well as allowing the attorney for Grandmother to question them. Respondent acted as her own attorney, as did Mother.
In her testimony, Mother stated she did not want Child under a legal guardianship and Respondent had misrepresented to her the meaning of the forms she signed. Mother said that until May 2015, she did not fully understand the meaning of the form she signed in August 2013. Originally, Respondent took good care of Child, but Mother now believed that Respondent was motivated by financial gain to seek temporary guardianship, because her housing discrimination lawsuit was based on having a child in the house. Once Mother was released from custody, she and Grandmother consistently sought to have Child returned to their home, where they both lived, but she said Respondent was interfering with visitation. Mother had an arrest record going back to 1996 and had served two prison terms for fraud and drug offenses. She had used drugs while pregnant with Child, but stopped after 2010 when Child was born.
Grandmother testified that Respondent had interfered with her visitation opportunities, so Grandmother quit trying. Her attorney and Mother submitted exhibits, including jail visitation logs and Respondent's rental application.
Respondent testified that she was asked by Mother and other relatives in August 2013 to take care of Child, because no one else was available. When Child first lived with her, she had behavioral problems but was in therapy and was improving. Respondent met with FCS investigators in April and June 2014. She said she could not afford to pay the $800 fee for the nonrelative HHSA investigation out of her savings, Grandmother would not cooperate and the study was not completed. After February 2015, Child did not want to be with Mother or Grandmother, because she said they had abused her. Respondent reported the allegations of abuse but was told that there was not enough evidence to proceed. Respondent said she had sought general guardianship only to prevent Child from being exploited by Mother.
According to the testimony of the visitation monitor, there was a lot of conflict among the parties, failures to attend, and disputes about who should pay the fees. Child abuse detectives contacted her in February 2014 about competing allegations made by Mother and Respondent. In February 2015, Respondent told the monitor not to contact her any more.
At the close of the hearing, the court referred to its statutory duty under Family Code section 3041 to seek a stable placement for the child, and noted that Respondent had been caring for the child since August 2013. It was not until seven months into the placement that Grandmother and Mother started to object. The burden was deemed to have shifted to Mother to show that it would benefit Child to remove her from that placement, but Mother could not make such a showing. The court considered the guardianship reports made by FCS, which included information about Mother's criminal history and drug use.
The court then stated that even if it disregarded the agreed upon seven-month period of placement with Respondent, there was an insufficient showing of detriment to Child to change placement. The court was not treating this guardianship matter as a dependency case with reunification issues, and it denied Mother's petition to terminate the guardianship. The court then turned to the decision on which of the two candidates should be appointed as general guardian, Respondent or Grandmother. The court noted that there had been visitation problems on both sides, but the court was concerned that Grandmother had not pursued much of a relationship with the child, despite having court ordered visitation. The court denied Grandmother's petition and granted that of Respondent. Mother left the courtroom.
The court then made interim visitation orders for supervised visitation for Mother and unsupervised visitation with Grandmother, costs to be shared. The court made another FCS referral for counseling on a visitation plan, filed May 8, 2015 and setting a two and one-half hour appointment for June 24, 2015. The court would then review the report and decide on visitation. The hearing on visitation was continued until July 29, 2015. On June 30, 2015, Mother filed her notice of appeal.
DISCUSSION
Mother claims the trial court erred in ruling on the competing guardianship petitions when it did not make an additional referral of the matter to dependency court or to child welfare services. She relies on the cross-allegations of child abuse and neglect as warranting that particular type of investigative proceeding. (In re Guardianship of Christian G. (2011) 195 Cal.App.4th 581, 607 (Christian G.) [CPS investigation potentially opens up "an array of services aimed at keeping the parent-child home intact"].)
I
APPLICABLE STANDARDS
Mother initially argues for a de novo standard of review of questions of law on undisputed facts. (See In re Katelynn Y. (2012) 209 Cal.App.4th 871, 876; In re Conservatorship of Tian L. (2007) 149 Cal.App.4th 1022, 1028.) This case arose under section 1510, subdivision (a). In appointing a guardian for a minor, the court is governed by the custody provisions in Family Code sections 3020 et seq. and 3040 et seq. (In re Kaylee H. (2012) 205 Cal.App.4th 92, 101.) It is well accepted that when reviewing such custody and visitation orders, we apply the deferential abuse of discretion test, which requires upholding a trial court " 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' " (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).)
These Family Code child custody and visitation provisions require the court to operate under an "overarching concern" for the child's best interests. (Montenegro, supra, 26 Cal.4th 249, 255.) There, the court cited to sections 3040, subdivision (b) and 3011 as requiring parenting plans to take into account the health, safety and welfare of the child, any history of abuse in the family, and the nature and amount of child-parent contact. (Montenegro, supra, at p. 255.)
Where dependency jurisdiction has not been asserted, probate court guardianships can provide an alternative placement scheme for children who cannot safely remain with their parents. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1122.) Section 1514, subdivision (a) allows the probate court to appoint a guardian of the person of a minor, pursuant to a guardianship petition, "if it appears necessary or convenient." (Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 1430.) When appointing a guardian, the court is to be guided by " 'the best interest of the child with respect to its temporal and its mental and moral welfare.' " (Suleman v. Superior Court (2010) 180 Cal.App.4th 1287, 1295-1296 [significant procedural differences exist between probate guardianships and dependency proceedings].) Under section 1516.5, subdivision (a), guardianship proceedings can lead to adoption after the child has been in the custody of the guardian for at least two years, where other criteria are satisfied.
In this guardianship proceeding, as in other contexts, we evaluate the probate court's exercise of discretion in light of the legal principles governing the subject of the action. (In re Kaylee H., supra, 205 Cal.App.4th 92, 104-105; Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 68 [guardianship proceeding has sufficient standards to allow it legitimacy as a mechanism for determining child custody].) "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and accordingly constitutes an ' " 'abuse' " ' of discretion." (Kaylee H., supra, at p. 105.) It is not the role of a reviewing court to retry issues regarding custody of a minor. (In re Estate and Guardianship of Hall (1962) 200 Cal.App.2d 508, 511 (Hall).) "[T]he trial court's determination of the best interests of the child will not be disturbed except upon a showing of manifest abuse of discretion." (Ibid.)
II
REVIEW OF RECORD
Respondent testified her petition for general guardianship was based on her desire to prevent Mother from exploiting Child. There were also allegations that Grandmother had abused Child. Based on the analysis in Christian G., supra, 195 Cal.App.4th 581 of then operative section 1513, subdivision (c), Mother seeks reversal of these 2015 guardianship orders, with an alternative referral to child welfare services for investigation of such allegations of abuse.
The provision cited by Mother, section 1513, subdivision (c), was amended in 2012 to require that prior to ruling on a petition for guardianship, "the court shall read and consider all reports submitted pursuant to this section, which shall be reflected in the minutes or stated on the record. Any person who reports to the court pursuant to this section may be called and examined by any party to the proceeding." Thus, the operative language in section 1513, subdivision (c) has been changed since 2011, the time the opinion in Christian G., supra, 195 Cal.App.4th 581 was issued. In 2011, the court was considering the prior statutory version, which did not allow guardianship proceedings to be proceed "until the investigation required by Sections 328 and 329 of the Welfare and Institutions Code is completed and a report is provided to the court in which the guardianship proceeding is pending." (Christian G., supra, at p. 595; Historical and Statutory Notes, 52A Pt. 1, West's Ann. Prob. Code (2016 ed.) foll. § 1513, p. 206.)
Thus, although under prior law, a probate court had a mandatory obligation to make a referral under the Welfare and Institutions Code for a guardianship, the current version of section 1513, subdivision (c) no longer imposes such an obligation. (See Christian G., supra, 195 Cal.App.4th 581, 602-607.) Rather, we must look to the probate court's exercise of discretion in light of the legal principles governing the subject of the action that were current at the time of the hearing. (In re Kaylee H., supra, 205 Cal.App.4th 92, 104-105.) Section 1513, subdivision (a) specifies that unless the court waives a reporting requirement, it shall cause a court investigator or other officer to file with the court a report and recommendation concerning the proposed guardianship of the person. In particular, this subdivision states, "Investigations where the proposed guardian is a relative shall be made by a court investigator. Investigations where the proposed guardian is a nonrelative shall be made by the county agency designated to investigate potential dependency." (§ 1513, subd. (a).)
Mother believes the guardianship orders were issued in violation of her due process rights, because greater safeguards of her parental or visitation rights might have been available in dependency court. She essentially argues there was an insufficient investigation made, because Respondent did not pay the fees to ensure that an HHSA investigation for a nonrelative caregiver was completed. (§ 1513, subd. (a).) Mother further contends that the trial court should have given greater weight to the evidence that Respondent allegedly misrepresented the purpose of the temporary guardianship consent papers that Mother signed.
The record discloses that over the year-plus of hearing on the petitions, the court was at all times advised that Respondent is not a blood relative of Child but instead has an informal kinship relationship as the paternal aunt of Mother's older daughter, the half-sister. In August 2013, the half-sister originally had de facto custody of Child but after a month, her behavior had raised enough concerns with Mother that she agreed to have Child placed with Respondent. At the time that Child came into the care of Respondent, she was showing behavioral problems, but after a few months, she was receiving therapy, showing some improvement and going to school. After a few more months, Mother and Grandmother started to object to the continuing arrangement, but Mother was still in jail and Grandmother did not utilize the visitation opportunities she was given in 2014. Because Child was apparently being afforded adequate care throughout the period covered by the petitions, the court had no indication that emergency or exigent conditions existed to cause a report to be made to child welfare services and therefore for the matter to be litigated in dependency court under the alternative procedures of Welfare and Institutions Code section 300.
By the time of this hearing, the court had received two FCS reports and had been made well aware of Respondent's changing employment status, litigation activities, and the overall visitation difficulties, but it nevertheless made a discretionary call that among the available alternatives, Respondent was the most suitable guardian. The court arranged for further involvement by FCS in making recommendations for a visitation plan that would be workable. There is no indication that if an HHSA investigation had been completed, its findings would have been any different. If one was completed, it is not in the record. Further, we cannot place any weight on Mother's claims that the father did not consent to the nomination of Respondent as a guardian, since there is no evidence in the record about his level of involvement in Child's life or ability to seek such involvement or otherwise care for her.
We are satisfied in examining this record that the appropriate investigations and due process safeguards were implemented, to give the probate court an adequate basis in the evidence to exercise its discretion in an informed manner, in ruling on the respective guardianship and visitation petitions. (H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 1138 [due process flexibly " ' "calls for such procedural protections as the particular situation demands" ' "].) " 'We may not reject the findings of the trial court and substitute contrary findings. There is evidence that would have supported contrary findings. That the trier of fact rejected that evidence does not impeach the soundness of his conclusions. We do not have the opportunity of seeing and hearing the parties and the witnesses or of applying any of the tests by which the propriety of appointing one or the other of the parties may be determined.' " (Hall, supra, 200 Cal.App.2d 508, 510-511.) The probate court could reasonably have concluded on this record that granting the general guardianship petition of Respondent, the principal caregiver since August 2013, would best promote Child's best interests of obtaining stability and permanence in her placement, under the dictates of Family Code section 3041.
In any event, Christian G., supra, 195 Cal.App.4th 581, 608 held that "even a lack of literal compliance with a mandatory duty may be harmless error, so long as the record affirmatively reflects that the protections intended to be afforded to private parties through the exercise of that duty has been otherwise provided." Even assuming that this matter somehow required a child welfare services investigation, the probate court ordered equivalent investigations and received recommendations from FCS to assist it in making an informed decision on the guardianship and visitation matters. The hearings on the petitions extended from March 2014 through May 2015, and were vigorously litigated by both sides, giving the court a complete picture of the situation. No legal error or abuse of discretion is evident on this record.
DISPOSITION
The orders are affirmed. Each party to bear own costs.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
O'ROURKE, J. /s/_________
AARON, J.