Opinion
D075990
10-07-2020
A.M., Respondent, v. A.L., Respondent, V.M. Appellant.
Judith E. Klein for Appellant. A.M., in pro. per., for Respondent. A.L., in pro. per., for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. D543234) APPEAL from an order of the Superior Court of San Diego County, Truc T. Do, Judge. Order affirmed; motion to dismiss and request for dismissal denied. Judith E. Klein for Appellant. A.M., in pro. per., for Respondent. A.L., in pro. per., for Respondent.
In this appeal, the child's paternal grandmother, V.M. (Grandmother), challenges an order of the family court that awards legal and physical custody of the child, D.S. (Child), to Child's parents, A.M. (Father) and A.L. (Mother) (together, Parents), and allows Grandmother visitation. Grandmother contends that the family court abused its discretion by applying an incorrect legal standard in awarding custody.
Neither of Parents has filed a respondent's brief. However, in one filing, Parents requested a voluntary dismissal of the appeal pursuant to rule 8.244; and, in another filing, on her own behalf, Mother moved pursuant to rule 8.54 to dismiss the appeal based on mootness.
Where there is no respondent's brief, we "decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2); further unidentified rule references are to the California Rules of Court.) "We do not consider the failure to file a respondent's brief as an admission of error." (County of San Diego Dept. of Child Support Services v. C.P. (2019) 34 Cal.App.5th 1, 7, fn. 7.) To the contrary, because of the presumption of correctness that attaches to the April 2019 FOAH (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133), Grandmother (as the appellant) has the burden of establishing reversible error, and we review her presentation—here, an opening brief, a clerk's transcript, and an augmented clerk's transcript—to determine whether she met her burden on appeal (C.P. at p. 7, fn. 7).
As we explain, Parents lack standing to dismiss Grandmother's appeal, and the appeal is not moot. As we further explain, Grandmother did not meet her burden of establishing that the family court erred in making its custody determination. Accordingly, we will deny Parents' request for a dismissal and Mother's motion to dismiss, and we will affirm the family court's April 1, 2019, findings and order after hearing (April 2019 FOAH).
I. STATEMENT OF THE CASE
The record on appeal does not contain the document by which Father originated this family court action against Mother and, thus, the claim(s) Father has asserted against Mother.
In November 2013, Parents stipulated and the family court ordered 15 separate items. As relevant to the issue in this appeal, the stipulation and order provided in part: Parents are the parents of Child, then three years old; Parents shall have joint legal and physical custody; Child's primary residence shall be with Mother in Tehachapi (Kern County); Parents shall strive to provide Father with as much parenting time as possible, up to 50 percent; and this is a temporary, not permanent, custody order.
Two years later, in November 2015, Grandmother moved the family court for an order joining her to the action; and she also requested orders deeming her to be a third parent of Child and modifying the current custody and visitation arrangement. Grandmother testified that she sought to be joined on the basis that she "is another parent pursuant to Family Code sections 7630[ subdivision ](b) and 7611[ subdivision ](d)." (Some capitalization omitted.) In part, Grandmother declared that Child was living with her and "has resided with [her] for most of his natural life and he is totally bonded to [her]." (Some capitalization omitted.) In addition, in the event the court approved her joinder, Grandmother sought to modify custody to award her legal and physical custody of Child with reasonable (unspecified) visitation for Parents. Parents filed written opposition. Following a hearing in December 2015, as an interim order, the court granted Grandmother's joinder, awarded Grandmother temporary custody of Child, and allowed temporary visitation to Parents. The court continued the custody proceedings until late February 2016.
Family Code section 7630, subdivision (b) provides in full: "Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the parent and child relationship presumed under subdivision (d) or (f) of Section 7611." (Further unidentified statutory references are to the Family Code.)
Section 7611, subdivision (d) provides in relevant part: "A person is presumed to be the natural parent of a child if . . . [¶] . . . [¶] . . . [t]he presumed parent receives the child into their home and openly holds out the child as their natural child."
The court did not rule on Grandmother's request to be deemed a presumed parent under section 7611, subdivision (d). The court's minute order reflects only that the court "ma[d]e[] . . . § 7612 . . . findings," but does not reflect what those findings are. The court's written findings and order after hearing indicate that Grandmother "made a showing of detriment to the [Child] by [Parents]. . . . [T]here was a stable placement of [Child] with [Grandmother] per Family Code section 7612, and [Parents] failed to rebut the presumption of same." The record does not contain a reporter's transcript of the December 2015 proceedings.
After additional briefing and further continuances, the court heard the child custody and visitation issues at the end of April 2016. In part, the court ruled as follows: Grandmother's section 7611, subdivision (d) request to be declared a third parent of Child is denied; Grandmother is awarded "sole legal and primary physical custody" of Child; Child shall reside primarily with Grandmother; Parents shall have visitation (on a detailed schedule, under specified terms); and Parents shall enroll and successfully complete "a parenting course of at least 6 weeks duration" and "a group process of addressing domestic violence for at least 6 months."
Two years later, in April 2018, Grandmother filed an ex parte request for an order terminating Parents' visitation. In support, Grandmother presented evidence that Child had been injured while visiting Parents and that Parents took Child to the hospital without notifying her (as the adult who had legal custody of Child). Father filed written opposition. The court temporarily suspended Parents' visitation and set the matter for hearing on May 11, 2018.
The record contains three minute orders and one findings and order after hearing which indicate that, based on at least Grandmother's April 2018 ex parte request, the family court presided over an evidentiary hearing that took place on May 11, May 29, and June 26, 2018. In its findings and order after the evidentiary hearing, the court described the hearing as "a stepping stone," ruling in part that, although "[t]he Court is not inclined under . . . Section 3041[, subdivision ](c) to remove [Child] from the stable parenting environment or stable placement with his grandmother, . . . th[e] Court finds it is ready to start moving towards a more normalized parenting plan for the minor child." Among the many detailed findings and orders, the court ruled that Child should remain with Grandmother, but awarded joint legal custody to Grandmother and Mother—with the admonition that "the Court wants to see how well they work together in dealing with the issue of the minor child"—and set a visitation schedule for Parents. The court made a specific finding that, for purposes of section 3011, "it does not have any credible evidence" either "that the parents are unfit" or that there is "domestic violence or drug abuse . . . that it needs to consider."
Section 3041, subdivision (a) provides in relevant part: "Before making an order granting custody to a person other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. . . ."
Section 3011 contains a list of "factors" the family court must consider in making a determination of the best interest of the child in a number of specifically identified proceedings. These factors include a history of each parent's domestic violence, drug abuse, and general parental fitness. (§ 3011, subd. (a)(2).)
The court set a review hearing for three months later, explaining in a subsequent minute order that its "procedure for the review hearing is to have all parties under oath state their perspective regarding the current status of custody and visitation, with the intention of progressively moving the minor child back to his parents' custody." (Italics added.) At this first review hearing in late September 2018, the family court modified the visitation schedule and set a further review hearing.
The second review hearing took place in early January 2019. At the conclusion, the family court requested an update from Child's therapist and set a further review hearing for late March.
Prior to the March 2019 hearing, Parents filed a joint declaration updating the court as to the status; Grandmother filed a request to modify certain prior court orders regarding the care, custody, and visitation of Child; and Parents jointly filed a responsive declaration to Grandmother's modification request. At this third review hearing—which resulted in the April 2019 FOAH on appeal here—the family court reviewed the pleadings, received testimony from all three parties, evaluated the credibility of the parties, and considered the arguments of the parties. The hearing was not reported, and Grandmother did not prepare or present either an agreed statement or settled statement of the March 2019 proceedings.
The minute order indicates that each of the three parties was represented by counsel. However the findings and order after hearing indicate that Parents represented themselves and Grandmother was represented by counsel.
In its findings and order after hearing (previously identified as the April 2019 FOAH), the family court began by explaining the legal basis of its April 2016 order awarding legal and physical custody to Grandmother over Parents' objections: "Before making an order granting custody to a nonparent over a parent's objection, 'the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.' " (Quoting and adding emphasis to § 3041, subd. (a), set forth at fn. 5, ante.) The court then traced Parents' and Child's development, growth, and improvement over the course of the three review hearings, ultimately finding and concluding in part: Child "is thriving in his parents' community"; Parents "have demonstrated stability and continuity for [Child] in their home and in their care"; and, as will be outcome determinative in this appeal, "the court no longer finds by clear and convincing evidence that awarding custody to [Parents] would be detrimental to the child and that granting custody to [Grandmother] is in the child's best interests." Based on these and other findings, the court awarded joint legal custody and joint physical custody to Mother and Father and granted reasonable visitation to Grandmother. These provisions in the April 2019 FOAH are a final custody determination.
The April 2019 FOAH does not criticize or find fault with how Grandmother had been raising Child.
Grandmother timely appealed from the April 2019 FOAH.
II. DISCUSSION
On appeal, Grandmother raises one issue: whether the family court applied the proper legal standard set forth in section 3041, subdivision (c), when it awarded legal and physical custody of Child to Parents jointly, rather than to Grandmother. In response, Parents requested a voluntary dismissal of the appeal pursuant to rule 8.244; and Mother moved to dismiss the appeal based on mootness pursuant to rule 8.54.
As we explain, as respondents Parents may not voluntarily dismiss Grandmother's appeal, the appeal is not moot, and Grandmother did not meet her burden of establishing reversible error. Accordingly, we will deny the request and the motion for a dismissal, and we will affirm the April 2019 FOAH. A. Parents' Request to Dismiss the Appeal (Rule 8.244)
Parents filed a request to dismiss the appeal pursuant to rule 8.244. Rule 8.244 allows for an appellant to request a dismissal of the appellant's appeal in the event of a settlement or an abandonment of the appeal.
Here, however, neither of Parents is an appellant, and there is no indication either that there is a settlement or that Grandmother (i.e., the appellant) intended to abandon the appeal. Accordingly, Parents' rule 8.244 request for a dismissal is denied. B. Mother's Motion to Dismiss Appeal (Rule 8.54)
Pursuant to rule 8.54, which provides the procedure for "a party wanting to make a motion in a reviewing court," Mother filed a motion to dismiss the appeal based on mootness. Grandmother filed written opposition.
Mootness, for purposes of dismissing an appeal, requires a showing that, through no fault of the respondent, the occurrence of an event or events renders the appellate court unable to grant the appellant " 'any effectual relief.' " (Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; Smith v. Superior Court (2020) 52 Cal.App.5th 57, 68.) That is because an appellate court's duty is to decide " ' "actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." ' " (Eye Dog Foundation, at p. 541; accord, Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 530 [" ' "The policy behind a mootness dismissal is that 'courts decide justiciable controversies and will normally not render advisory opinions.' " ' "].)
Parents argue that, because the parties received due process in the proceedings that resulted in the April 2019 FOAH and "[P]arents and [C]hild are united and growing," the appeal is moot. Grandmother counters that, if she is successful in establishing that the family court applied an incorrect legal standard in making its custody determination, then the April 2019 FOAH will be reversed (or vacated) and the matter remanded for proceedings in which the court will apply the correct legal standard.
Grandmother has the better argument. First, Grandmother does not raise any due process concerns in this appeal. Second, we review the order on appeal as of the date on which it was entered, not based on evidence or argument as to how well the parties have adjusted to the terms of the challenged order. Finally, Grandmother does present a justiciable controversy—Did the family court apply the proper standard when it awarded legal and physical custody of Child to Parents jointly, rather than to Grandmother?—and, in the event Grandmother were to establish reversible error, we could grant relief.
Accordingly, Parents' motion to dismiss the appeal is denied. C. The Family Court Applied the Proper Legal Standard in its Custody Determination
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Marriage of Burgess).) In exercising its discretion, a family court " 'must "follow established legal principles and base its findings on substantial evidence." ' " (In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 590 (Marriage of Pasco.)
As argued by Grandmother, the family court here abused its discretion by applying an incorrect legal standard, thereby "contraven[ing] the specific law that grants the discretion in the first place." (Conservatorship of Bower (2016) 247 Cal.App.4th 495, 506 [order dividing community property].) Because " '[d]iscretion is delimited by the applicable legal standards, a departure from which constitutes an "abuse" ' . . . , a court abuses its discretion if it applies an incorrect legal standard." (In re A.S. (2018) 28 Cal.App.5th 131, 144-145.)
For purposes of reviewing the merits of a child custody ruling, "[t]he precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (Marriage of Burgess, supra, 13 Cal.4th at p. 32.) Because the determination of "[w]hat constitutes the best interest of a child presents an inherently factual issue" (Guardianship of A.L. (2014) 228 Cal.App.4th 257, 268), a family court commits an abuse if its discretionary decision is not supported by substantial evidence (Marriage of Pasco, supra, 42 Cal.App.5th at p. 590).
Grandmother raises no substantial evidence issues in this appeal. Nor could she succeed on such a claim, since she did not provide a reporter's transcript or an agreed or settled statement of the proceedings. That is because where, as here, the appellant does not provide a complete reporter's transcript of the evidentiary proceedings on appeal, with regard to any evidencebased arguments, "it is presumed that the unreported . . . testimony would demonstrate the absence of error." (Estate of Fain (1999) 75 Cal.App.4th 973, 992 (Fain).) In short, " '[f]ailure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]' " if the issue is based on the adequacy of the evidence presented. (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).)
We review de novo this issue of law. (Jennifer K. v. Shane K. (2020) 47 Cal.App.5th 558, 577.)
As her first argument, Grandmother contends that the family court "failed to recognize the standard set forth in [section] 3041." (Initial capitalization omitted.) We disagree. Grandmother's characterization of the April 2019 FOAH ignores the first substantive paragraph, after the introduction of the parties and proceedings, which provides:
"The circumstances which required the court on April 28, 2016 to award legal and physical custody to [Grandmother] over the parents' objections no longer exist today. Before making an order granting custody to a nonparent over a parent's objection, 'the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the non parent [sic] is required to serve the best interest of the child.' Fam. Code § 3041(a) (emphasis added). The additional criterion of detriment that is required when the court is considering a custody order in favor of [a] nonparent reflects not only California's policy of parental preference in custody determinations, Fam. Code § 3040(a)(l), but a parent's constitutional right to make decisions concerning the care, custody, and control of their children. Troxel v. Granville (2000) 530 U.S. 57, 65-66."Thus, the court not only recognized the standard to be applied "[b]efore making an order granting custody to [Grandmother] over [Parents'] objection," the court expressly quoted the standard from the applicable statute, section 3041, subdivision (a), and ruled that "the circumstances" which previously supported a custody award to Grandmother "no longer exist today." (Italics added.)
Following these statements of the correct legal standard to be applied and a change in circumstances, the family court discussed the evidence, made various findings of fact, and concluded:
"Unlike in 2015 when the court first awarded temporary physical custody to [Grandmother], the court no longer finds by clear and convincing evidence that awarding custody to [Parents] would be detrimental to the child and that granting custody to [Grandmother] is in the child's best interests."Given this ruling, we reject Grandmother's suggestion that the court erred by "focus[ing] on the parents rather than [the child]." The court clearly and unmistakably based its ruling on Child's best interest. This is the correct legal standard, even according to Grandmother.
Notably, Grandmother does not provide a record reference for her statement that the court focused on Parents rather than on Child, and for this reason we disregard the statement. (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1079 (Delta) [appellate courts may disregard factual statements in an appellate brief that are not supported by accurate citations to the record on appeal]; rule 8.204(a)(1)(C) [an appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) Elsewhere, Grandmother also makes the unsupported criticism, which we do not consider, that "the Court's focus was on the parents, their progress and their interests, rather than on [Child's] or [Grandmother's] interest." As an aside, we are unaware of, and Grandmother does not offer, any authority to support the suggestion that her interests are to be considered when determining, as required by section 3041, subdivision (a), whether "granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child."
To the extent Grandmother's argument relies on the evidence from the hearing, her reliance is misplaced. As we explained at footnote 9, ante, because Grandmother did not provide a reporter's transcript (or agreed or settled statement) of the proceedings, we presume that the transcript contains substantial evidence to support the court's ultimate ruling based on Child's best interest and must resolve the evidentiary issue against her. (Fain, supra, 75 Cal.App.4th at p. 992; Jameson, supra, 5 Cal.5th at p. 609.)
For her second argument, while somewhat repetitious of her first, Grandmother next contends that the family court abused its discretion by "chang[ing] custody without receiving evidence regarding [Child's] best interest." (Initial capitalization omitted.) To the extent this is a different argument than presented initially, we reject it for the same reason we rejected the first argument: Grandmother cannot establish the premise—namely, that the court did not receive evidence regarding Child's best interest. Based on the record of the proceedings Grandmother presents on appeal, we must presume that the reporter's transcript (or an agreed or settled statement) of the proceedings would establish that, contrary to the premise of Grandmother's argument, the family court received evidence regarding Child's best interest. (Fain, supra, 75 Cal.App.4th at p. 992; Jameson, supra, 5 Cal.5th at p. 609.)
Indeed, not only does Grandmother's argument require our consideration of the evidence presented in March 2019, Grandmother further relies on specified evidence from the June 2018 hearing in which she was awarded custody. Again with no record reference—and the record in the present appeal does not contain a transcript of the June 2018 proceedings—we do not consider Grandmother's unsupported statements. (Delta, supra, 48 Cal.App.5th at p. 1079; rule 8.204(a)(1)(C).) --------
For the foregoing reasons, Grandmother did not meet her burden of establishing that the trial court abused its discretion in awarding legal and physical custody to Parents and visitation to Grandmother.
III. DISPOSITION
The April 2019 FOAH is affirmed. Mother and Father are awarded their respective costs on appeal. (Rule 8.278(a)(2).)
IRION, J. WE CONCUR: O'ROURKE, Acting P. J. AARON, J.