Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. D502072, Patricia Garcia, Judge.
HUFFMAN, J.
This marital dissolution case involves an in propria persona appellant husband of a short term marriage who appeals from an order entered July 23, 2007, denying his petition for child custody and visitation rights with a minor stepchild under Family Code section 3101, subdivision (a). At the time of his petition, Shawn Woodall, was an indigent prisoner in San Diego County Jail awaiting trial on criminal charges. Because his respondent wife, Janice Teeter, has filed no responsive pleadings, we determine the appeal based on the record provided and Woodall's opening and supplemental briefs. (Cal. Rules of Court, rule 8.220(a)(2).)
All statutory references are to the Family Code unless otherwise specified.
Woodall has notified this court that his current address is in the state prison at Norco, California.
Woodall essentially contends he should not be held to the same stringent standard as an attorney in his pro per pleadings, his due process and equal protection rights to access the court were obstructed by government officials, the trial court abused its discretion when it failed to enter an order to produce him in court or to appoint counsel to represent him in this matter, his due process right to cross-examine witnesses against him was violated by the trial court's failure to order him produced for the hearing in this matter, and the trial court erred by construing his motion for visitation as a motion for paternity. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As best we can decipher from the record before us, Woodall filed a petition for legal separation from an alleged four and a half month marriage to Teeter on March 7, 2007, citing irreconcilable differences and requesting joint legal custody of and visitation with Teeter's three-year-old daughter, whose physical custody would be with Teeter. Woodall further requested that child support be granted to Teeter "to commence upon [his] release from incarceration."
On April 6, 2007, Teeter, also in propria persona, filed a response requesting dissolution of the couple's two month marriage due to irreconcilable differences and claiming there was no minor child of the marriage, but noting in her income and expense declaration that she had a three-year-old daughter living with her.
On June 5, 2007, Woodall filed a notice of motion for visitation rights with Teeter's minor child pursuant to section 3101, subdivision (a) and incorporated a request for de facto parental determination. In his supporting declaration, Woodall acknowledged that he was currently in custody because he had "unlawfully possessed a usable amount of a controlled substance," but claimed he had "never been arrested, charged or convicted of any violent or sex crime." Woodall asserted he had been the de facto father of Teeter's three-year-old daughter for approximately six months, he loved her as if he were her biological father, her own biological father had abandoned her, and he had an interest in adopting the minor child even though he and Teeter had separated. Woodall also asserted that granting him visitation rights would not conflict with any right of custody or visitation of a birth parent who is not a part of this proceeding, and that he had consistently attempted to keep in contact with his stepdaughter by sending letters and pictures he had drawn to her via Teeter's parents.
Woodall further explained that he had met Teeter at a halfway house in San Diego in January 2006, where he was serving the last portion of a nonviolent federal sentence. He then listed his various educational accomplishments while in federal incarceration facilities in Colorado and New Jersey, including earning his high school diploma (GED) in 2001, completing a 12-week parenting class in 2002 to learn how to "be a parent from a distance," completing various computer business courses in 2002, as well as a nine-month residential substance abuse treatment program, and completing additional college courses in 2005, which included earning an associate of arts degree in paralegal studies.
Woodall noted that he had previously worked for the U.S. Drug Enforcement Administration before his federal incarceration, had worked as a GED instructor, a nurse, a bank executive and also as a law library clerk. He claimed that his mother's unexpected death shortly before his release from federal custody in 2006, triggered his drug relapse, which subsequently led to his pending state drug charges. He was currently seven months drug free, attending counseling sessions, Narcotics Anonymous and Alcoholics Anonymous meetings in jail, and claimed that his stepdaughter was giving him "the impetus to turn [his] life around again." Woodall also wanted the court to know that his release from federal custody was inadequate for a successful reentry into society as it only included two and one half months of halfway house placement thereby contributing to his relapse.
Woodall requested an order to produce his presence at the June 18, 2007 case classification conference set by the court, for rights to custody and visitation "with [his] daughter" and for a declaration that he was "de facto the legal father to [her]." Woodall also submitted a family court services screening form requesting "phone mediation," an order to show cause (OSC) to produce the letters he had sent to Teeter's minor child, and for visitation with the child pending a hearing on the matter.
In her responsive declaration to the OSC and notice of motion, Teeter objected to any order that permitted Woodall custody or visitation with her daughter, stating that Woodall was not the biological father of the child and "it is not in the best interest of the minor child." Teeter named the biological father, said her daughter knew her biological father as her father, and the child did not know Woodall as her "daddy" as he claimed. Teeter estimated that Woodall had spent a maximum of eight hours with her daughter during their marriage.
A six-page parenting plan submitted to the court by the Family Court Services (FCS) counselor stated that on June 27, 2007, the parties had participated in a "pre-OSC mediation conference" in his office, with Teeter in person and Woodall by telephone from jail. After noting that the minor child's biological father had been determined in a 2004 child support determination between the biological father and Teeter, the FCS counselor outlined in neutral fashion the information received from Woodall and Teeter regarding their short marriage and their separate views on the matter before the court. Woodall, as movant and stepfather, was requesting sole legal and physical custody for Teeter and supervised weekly visits with the child for himself at the jail in addition to weekly telephone contact. Teeter, who was employed and living in an apartment with the child, requested sole legal and physical custody of her daughter and no visitation or phone contact with the child for Woodall.
Woodall essentially told the FCS counselor that he had equally shared child rearing responsibilities with Teeter when they lived together and that after their separation he maintained telephone and letter contact with the child, with no return correspondence. Woodall stated that when he attempted to visit the child on November 3, 2006 at the maternal grandparents' home, he was refused visitation by Teeter and a friend of hers who contacted the police with a false story that he had pushed Teeter. Teeter rebutted these statements, telling the FCS counselor that the couple only lived together for two days after her release on May 16, 2006, from the work furlough program where they met in January 2006. They separated two days later because Woodall was smoking "crack" in the presence of the child and had hit Teeter on her head before they were evicted from the place they were staying. Although Teeter conceded the maternal grandparents had received numerous letters addressed to the child from Woodall, she said the letters had not been presented to the child and Woodall had not had telephone contact with the child since their separation. Teeter also disputed Woodall's version of the November 2006 visit to her parent's home, stating he had been asked to leave because the child did not want to see him.
The FCS counselor noted that Woodall then denied Teeter's allegations that he had used drugs in the child's presence or had hit Teeter. Woodall also expressed concerns about Teeter's ability to parent the child because she had used drugs with him in the past, allegedly interacted with methamphetamine dealers, and also had been convicted of a felony gang-related violent crime. Both Woodall and Teeter described their previous convictions and incarcerations to the FCS counselor and respectively explained how they were on law-abiding, drug free paths at the time of the OSC conference. Although Woodall insisted that the child knew him as a parental figure, Teeter disagreed, adding that the child knew the biological father and had occasional contact with him, most recently three months ago. The parties were unable to agree on a sharing plan for the minor child.
The FCS counselor recommended that Woodall's request for visitation with the minor child be denied. The counselor reasoned that:
"First, [Woodall] has no foundation to request contact, as he is not a legal parent or guardian of [the child]. The child has a known biological father who has been established to be the child's parent, and the mother indicated that the child has ongoing contact with the biological father. Second, it appears that [Woodall] has not had sufficient opportunity to parent the child or develop a significant bond, which would preclude any meaningful visitation, especially in a locked-down setting in jail as the stepfather requests. Lastly, [Woodall's] criminal history and associated incarcerations suggest that his capacity to safely parent the child would be questionable. The principal need for continuity and stability and the harm that may result from disrupting established patterns of care and emotional bonds with the primary caretaker favor maintaining the ongoing custody arrangement."
On July 23, 2007, the trial court denied Woodall's motions for custody/visitation of Teeter's minor child. The formal order filed July 27, 2007, noted that Teeter had been present at the hearing on the motions while Woodall had not been present, and stated:
"CHILD CUSTODY AND VISITATION: [¶] 1. Petitioner's custody and visitation of [the minor child] is denied. [¶] 2. The Court finds the child is not the biological child of Petitioner, Shawn Woodall. [¶] 3. [The biological father of the child] has been established in case DF185832. [¶] OTHER ORDERS: [¶] 1. The Future Case Classification conference set on 9/24/07 at 1:30 p.m. is confirmed."
Woodall filed a notice of appeal on July 31, 2007 from the July 23, 2007 order denying his motion for visitation rights with his stepdaughter.
The record also includes a motion filed August 16, 2007 by Woodall for modification of child custody, requesting personal appearance or appointment of counsel and essentially asking for reconsideration of the trial court's July 27, 2007 order denying his earlier custody/visitation motions and supporting documents. The record does not reflect any action taken on the motion or any notice of appeal regarding any subsequent action. Thus, although we liberally construe Woodall's notice of appeal from the July 23, 2007 order of the court to include the formal written order of July 27, 2007, describing the court's ruling of July 23, 2007, we do not consider Woodall's subsequently filed motion to reconsider for purposes of this appeal.
DISCUSSION
Woodall's specific "access to the courts" contentions aside, the crux of this appeal is whether the trial court erred when it denied his motion brought under section 3101 for stepparent visitation rights with respect to Teeter's three-year-old child. As to this issue, we can find no abuse of the trial court's discretion in denying Woodall's motion.
Section 3101 provides in pertinent part:
"(a) Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child. [¶] (b) . . . [¶] (c) Visitation rights may not be ordered under this section that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding. [¶] (d) As used in this section: [¶] (1) 'Birth parent' means 'birth parent' as defined in Section 8512. [¶] (2) 'Stepparent' means a person who is a party to the marriage that is the subject of the proceeding, with respect to a minor child of the other party to the marriage."
Section 8512 defines "birth parent" as "the biological parent, or in the case of a person previously adopted, the adoptive parent." Together these sections provide that "in a marital dissolution action between a stepparent and a 'birth parent,' the court may grant reasonable visitation to the stepparent when such visitation is 'determined to be in the best interest of the minor child.' ([§ 3101], subds. (a), (d).)" (In re Marriage of W. (2003) 114 Cal.App.4th 68, 72.)
Section 3101, however, has been construed to contain a presumption in favor of parental decisions regarding the upbringing of their children such that a court will generally defer to the expressed wishes of the natural parents regarding nonparental visitation unless it is shown that such visitation "is in the best interest of the child and denial of visitation would be detrimental to the child. [Citation.]" (In re Marriage of W., supra, 114 Cal.App.4th at pp. 73-75.) In other words, stepparent visitation rights are secondary to a "birth parent's" custody or visitation rights (§§ 3101, subd. (d)(1), 8512) and such nonparent visitation will usually be denied when there is parental objection to such visitation. (See In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1520.)
Here, although Woodall fits the definition of stepparent because he is a party to a marriage with Teeter that is being dissolved in this action and she has a minor child, the birth parent or biological father of the child had earlier been established by way of a paternity action. Because Teeter specifically objected to Woodall having any visitation rights with the child and represented that the biological father, who is not a party to this proceeding, has visitation with the minor child and the child knows him as her father, the trial court was essentially required to deny visitation to Woodall absent a showing that such denial would be detrimental to the child and that such stepparent visitation was in the best interests of the child. (In re Marriage of W., supra, 114 Cal.App.4th at pp. 73-75.) Although the trial court's order and written ruling on the matter could have been more explicit, we presume the court properly considered Teeter's parental wish that Woodall not have stepparent visitation rights because he had not developed a substantial bond with the child while the biological father, who was not a party to the action or given an opportunity to be heard, did have such bond, before denying Woodall's motion brought under section 3101. Based on Teeter's expressed wishes and the report of the FCS counselor, we cannot find on this record that the trial court abused its discretion in denying Woodall's motion for custody and stepparent visitation.
Contrary to Woodall's assertion that the trial court misconstrued his motion as one for paternity, the record reflects the findings of the court mentioned in its rulings on the motion for custody and visitation merely referred to the supporting foundational facts for applying the "birth parent" presumption, i.e., that a biological father had already been established through a paternity action and that the biological father was not Woodall.
Nevertheless, Woodall raises numerous issues concerning his due process rights to access the court, either through ordered appearance or appointment of counsel to represent him in this family law matter, which he claims were violated and require reversal of the court's order. We disagree.
Although we recognize that indigent prisoners face obstacles that often prevent their appearances in civil court proceedings, they ordinarily have no constitutional right to appear personally in civil matters. (Payne v. Superior Court (1976) 17 Cal.3d 908, 913, 923, 926-927.) Nor does Penal Code section 2625, subdivision (d), upon which Woodall relies, provide prisoners like him the absolute right for an order to be produced before the court in a family law proceeding not involving the termination of parental rights "brought under Part 4 (commencing with Section 7800) of Division 12 of the Family Code. . . ." (Pen. Code, § 2625, subds. (b), (d) & (e).)
Nonetheless, courts have been encouraged to devise alternative means to secure inmates "meaningful" access to the courts, especially in matters such as the retained right of reasonable visitation with their children. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-793 (Wantuch); In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402.) In Hoversten v. Superior Court (1999) 74 Cal.App.4th 636 (Hoversten), the court found that, in addition to the nine options cited by the court in Wantuch to secure access to the court, the services of the family court mediator in contested custody and visitation matters would also provide an inmate the opportunity to participate in mediation and ensure a form of access. (Hoversten, supra, 74 Cal.App.4th at p. 643.) Such a mediator was used in this case with the telephone access Woodall had requested.
The court in Wantuch noted various remedies that prisoners could utilize to secure access to the court: "(1) deferral of the action until the prisoner is released [citation]; (2) appointment of counsel for the prisoner [citations]; (3) transfer of the prisoner to court [citations]; (4) utilization of depositions in lieu of personal appearances [citations]; (5) holding of trial in prison [citation]; (6) conduct of status and settlement conferences, hearings on motions and other pretrial proceedings by telephone [citation]; (7) propounding of written discovery; (8) use of closed circuit television or other modern electronic media; and (9) implementation of other innovative, imaginative procedures [citations]." (Wantuch, supra, 32 Cal.App.4th at pp. 792-793, fns. omitted.) The court in Wantuch also pointed out that "a prisoner doe not have a right to any particular remedy" to secure meaningful access to the courts. (Ibid.)
Woodall did not request the appointment of counsel until he filed his motion for modification or reconsideration of the court's denial of his motion, which is not properly before us on this appeal. Regardless, "the right of an indigent prisoner to appointed counsel in a civil action arises only when there is a bona fide threat to his or her personal or property interests and no other feasible alternative exists. [Citations.]" (Wantuch, supra, 32 Cal.App.4th at pp. 793-794.)
Moreover, although the record reflects that the family court returned some of Woodall's papers that he initially tried to file, with explanations as to why it was doing so, the record does not reflect that Woodall was denied the opportunity to provide his position and support for his position for the motion at issue on this appeal. "In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules. [Citations.]" (Wantuch, supra, 32 Cal.App.4th at p. 795.) The record shows that Woodall commenced this marital proceeding and the subject child custody and visitation motions, has filed supporting declarations and attended the premediation conference by telephone. Despite Woodall's numerous protestations about denials of his constitutional rights by the family court and the sheriff's department when they enforced procedural rules and regulations applicable to all persons, we cannot find on this record that Woodall has been denied access to the court.
Further, even assuming the court abused its discretion in not granting Woodall's request for his appearance at the July 23, 2007 hearing on his motion for stepparent visitation, we cannot say that a miscarriage of justice has occurred. (See In re Jesusa V. (2004) 32 Cal.4th 588, 624-625 [" 'No judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice].' ") Woodall has not identified any facts that could have been presented only through his live testimony or which were not already presented through his own declarations or the recitation of his facts told to the FCS counselor at the mediation conference by telephone. As the report of the mediator shows, Woodall already disputed the statements made by Teeter as to his relationship and interactions with her minor child.
On this record showing a two to four month marriage and only two days of physical cohabitation before separation, it is difficult to see, in light of Woodall's admitted criminal history, incarcerations and drug usage, any substantial bond between Woodall and Teeter's minor child, which would qualify him as a bona fide "de facto parent" for whom the court would grant stepparent visitation rights over the biological father's rights and the biological mother's wishes. We therefore conclude that Woodall has not shown any abuse of discretion or conceivable "miscarriage of justice" by the court's failure to order his presence for the hearing on his section 3101 motion for custody and stepparent visitation or in its denial.
Our Supreme Court has defined a "de facto parent" as a "person who, on a day-to-day basis, assumes the role of parent, seeking to fulfill both the child's physical needs and [her] psychological need for affection and care." (In re B.G. (1974) 11 Cal.3d 679, 692, fn. 18.)
We decline to elaborate on Woodall's remaining constitutional claims.
DISPOSITION
The order appealed from is affirmed.
WE CONCUR: McCONNELL, P. J., NARES, J.