Opinion
A152392
07-23-2018
Guardianship of J.F., a Minor. J.F., Plaintiff and Respondent, v. G.F., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. PR1701556)
Appellant G.F. (mother), appearing in propria persona, appeals from an order granting a petition filed by her now 14-year-old daughter J.F. (daughter or minor) for appointment of daughter's paternal uncle and a non-relative as her co-guardians. Mother challenges both the jurisdiction of the court and the substance of the court's ruling. We find no error and shall affirm the order establishing a guardianship of minor.
Factual and Procedural History
Minor's father died on April 30, 2017. At the time of his death, father had sole legal and physical custody of minor and mother had weekly supervised visitation by Skype under a court order entered in April 2014.
The record on appeal contains little factual evidence regarding the complicated family history that led to the entry of the custody order. It appears undisputed that father was a United States citizen, mother is a citizen of the Netherlands, and J.F. has dual citizenship. The parents divorced when minor was about five years old, and for a period of time thereafter minor lived with mother in the United States and had visitation with father. When minor was about eight years old, mother took her to the Netherlands when she went to care for minor's grandmother. The parties dispute whether minor's continued presence in the Netherlands was permissive or an abduction, but they agree that in 2014 a Dutch court ordered her return to the United States. The family court order transferring custody to the father was entered upon minor's return to California.
On May 1, 2017, minor filed a petition for creation of a guardianship, seeking to have her uncle appointed as her guardian. On the same day, she filed a petition for appointment of a temporary guardian and requested hearing on the petition be set for May 3. Mother was given notice of the May 3 hearing by email.
The record reflects that when father became ill he began preparing the guardianship petitions, but died before they were filed.
The temporary guardianship hearing was continued by the court for one day and held May 4, 2017. Mother appeared telephonically. At the hearing, minor confirmed she did not want to be placed in mother's care. The probate court granted minor's request to appoint her uncle as her temporary guardian and set a hearing on the petition for permanent guardianship for June 19.
For reasons that are unclear from the record, the hearing was continued until August 7. By that date minor had amended her petition to request appointment of her uncle and a non-relative as co-guardians. Also, mother had filed what she denominated as a notice of automatic stay of proceedings based on an action she filed against minor's uncle in federal court seeking the return of her daughter under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49 (the Hague Convention).
The purpose of the Hauge Convention is "to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and . . . to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." (Hague Convention, art. 1.) Both the United States and the Netherlands are signatories to the Convention. (U.S. Dept. of State, Bureau of Consular Affairs, Hague Abduction Convention Country List, <https://travel.state.gov/-content/travel/en/International-Parental-Child-Abduction/abductions/hague-abduction-country-list.html> [as of July 23, 2018].) The United States implemented the Hauge Convention through the enactment of the International Child Abduction Remedies Act, 100 Pub.L. No. 300; 102 Stats. 437 (1988) (codified as amended at 22 U.S.C. § 9001 et seq.).
At the August 7 hearing, mother argued she was entitled to full custody of her daughter based on what she said was a Dutch judge's declaration, and she sought to stay the probate proceedings based on the pending federal case against minor's uncle. The court rejected mother's arguments and granted the petition to appoint the uncle and non-relative as permanent co-guardians, as the minor had requested. The court found that it would be detrimental to minor if she were removed from her co-guardians' care and placed with her mother.
Mother timely filed a notice of appeal.
Discussion
1. The court did not err in granting minor's petition for temporary guardianship.
Although the order creating a temporary guardianship is not appealable (Prob. Code, § 1301, subd. (a)), and properly before us is only the order creating a permanent guardianship, we address these issues because mother's arguments conflate the two orders and the relevant issues.
Probate Code section 1510, subdivision (a), authorizes a minor 12 years of age or older to file a petition for the appointment of a guardian. Probate Code section 2250, subdivision (a) authorizes the filing of a petition for appointment of a temporary guardian on or after the filing of a petition for appointment of a permanent guardian. "The petition shall state facts that establish good cause for appointment of the temporary guardian . . . . The court, upon that petition or other showing as it may require, may appoint a temporary guardian of the person . . . to serve pending the final determination of the court upon the petition for the appointment of the guardian." (§ 2250, subd. (b).)
Minor's petition explains that appointment of a temporary guardian was necessary because minor's father had died, mother was seeking to regain custody, minor did not feel "physically, emotionally, or psychologically safe with her mother" and did not want to return to her mother's care. At the hearing, minor clearly expressed her desire to remain in her current placement pending the hearing on her petition for guardianship. Under these circumstances, good cause supported the appointment of a temporary guardian for minor.
Mother contends that the court had no authority to act on minor's petition because mother immediately became the sole custodian of her daughter upon the father's death and, therefore, she was entitled to remove her from the country without court interference. However, the court clearly had the authority to act under the Probate Code sections that authorize the filing of a petition for temporary guardianship. As discussed post, mother's right to custody was amply protected by Family Code section 3041, subdivision (a), which the court applied in determining whether to grant the petition for permanent guardianship.
Family Code section 3041, subdivision (a) reads in relevant part, "Before making an order granting custody to a person or persons 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."
There was no error in the appointment of a temporary guardian.
2. The court properly exercised its jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.
Mother argues that under the Uniform Child Custody Jurisdiction and Enforcement Act, Family Code section 3400 et seq. (the UCCJEA or Act), the court was required to defer to the jurisdiction of the court in the Netherlands. "California adopted the UCCJEA effective January 1, 2000. [Citations.] The UCCJEA is the exclusive method of determining subject matter jurisdiction in child custody cases. [Citations.] Subject matter jurisdiction over a child custody dispute either exists or does not exist at the time the petition is filed, and jurisdiction under the UCCJEA may not be conferred by mere presence of the parties or by stipulation, consent, waiver, or estoppel. [Citations.] [¶] The purposes of the UCCJEA are 'to avoid jurisdictional competition between states or countries, promote interstate cooperation, avoid relitigation of another state's or country's custody decisions and facilitate enforcement of another state's or country's custody decrees.' " (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1287-1288.) Under the UCCJEA, a California state court "may not exercise its jurisdiction under this chapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 3427." (Fam. Code, § 3426, subd. (a), italics added.) The court's determination of "whether a child custody proceeding has been commenced in a court in another state" shall be based on the court's review of the "court documents and other information supplied by the parties pursuant to Section 3429." (Fam. Code, § 3426, subd. (b).) Section 3429 requires, among other things, a party in a child custody proceeding to state "in its first pleading or in an attached affidavit" whether the party "[h]as participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of, or visitation with, the child and, if so, identify the court, the case number, and the date of the child custody determination, if any."
Under Section 3405, subdivisions (a), "A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this chapter . . . ."
In this case, the record contains absolutely no evidence that an action regarding custody of the minor was pending in the Netherlands on May 1, 2017, when minor's petition was filed. Mother's UCCJEA declaration, which was filed on May 3 with her opposition to minor's petition, does not identify any proceeding regarding minor's custody then pending in a court in the Netherlands. At the August 7 hearing mother announced that " Dutch court has already acknowledged that I have . . . full custody" and she claimed to have "a declaration from a Dutch judge that I have full legal and sole custody" of the minor. Mother did not submit any documentary evidence in support of this claim. On appeal, she has attached as an exhibit to her opening brief a document dated May 13, 2017, that she claims is a declaration issued by "the court in Zwolle, Netherlands," stating that mother "holds sole legal custody of the minor child in the Netherlands." The attached document is not a part of the court record and, more importantly, it is not a court order. It is the opinion of a Dutch lawyer. Moreover, the opinion does not state that a Dutch court has entered an order to that effect, but merely indicates that under Dutch domestic family law, "if one of the parents vested with joint parental authority dies, then the other parent vested with parental authority will continue to exercise that parental authority alone." The opinion makes no mention of the facts that the minor was residing in California and that under an order of the California court at the time of his death the father held sole legal and physical custody of the minor. Thus, the opinion letter, premised on the incorrect assumption that mother shared parental authority with father at the time of father's death, hardly supports the conclusion that under Dutch law mother acquired sole custody when the father died, much less that a Dutch court had so determined. Accordingly, there was no error in the California court's exercise of jurisdiction.
3. The court did not err in refusing to stay the guardianship proceedings under the Hague Convention.
Mother contends that once she filed her petition in federal court under the Hague Convention, the trial court should have stayed the guardianship proceedings pending resolution of the federal action. "Article 16 of the Convention provides that '[a]fter receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.' " (Escobar v. Flores (2010) 183 Cal.App.4th 737, 753; see also Hague Internat. Child Abduction Convention, text and legal analysis, 51 Fed.Reg. 10494-01 § H (1986) ["Article 16 bars a court in the country to which the child has been taken or in which the child has been retained from considering the merits of custody claims once it has received notice of the removal or retention of the child."].) Formal notice and issuance of a stay is not required to trigger the Article 16 protections. (Hague Internat. Child Abduction Convention, text and legal analysis, supra, 51 Fed.Reg. 10494-01, § H ["A court may get notice of a wrongful removal or retention in some manner other than the filing of a petition for return, for instance by communication from a Central Authority, from the aggrieved party (either directly or through counsel), or from a court in a Contracting State which has stayed or dismissed return proceedings upon removal of the child from that State."].)
Article 16 did not require the probate court to stay the proceedings pending resolution of the federal action. Rather, Article 16 prohibits the court from determining custody "until it has been determined that the child is not to be returned under this Convention." The undisputed facts before the court at the time of the hearing established that minor was not subject to "return" to the Netherlands under the terms of the Convention. Minor was a resident of California at all relevant times. (See Hague Internat. Child Abduction Convention, supra, text and legal analysis, 51 Fed.Reg. 10494, 10504 ["In order for the Convention to apply[,] the child must have been 'habitually resident in a Contracting State immediately before any breach of custody . . . rights.' [Citation.] In practical terms, the Convention may be invoked only where the child was habitually resident in a Contracting State and taken to or retained in another Contracting State."].)
In any event, in March 2018 the federal court granted summary judgment in favor of minor's uncle on mother's Hague Convention petition. Thus, even if, contrary to the above, a stay should have been granted, the failure to issue the stay was not prejudicial and any challenge to the denial of the requested stay is moot.
Minor's request for judicial notice of the order granting defendant's motion for summary judgment of mother's petition under the Hague Convention is granted. The remainder of minor's request for judicial notice is denied on the ground of relevancy.
4. Mother's due process claims are without merit.
Mother asserts numerous arguments addressing what she characterizes as violations of her right to due process. First she contends the court failed to consider "the essential facts at hand. The issue of whether California or The Netherlands was the more appropriate forum was never determined, nor was appellant's Hague Convention case against co-guardian[s] . . . ever given consideration. The court failed to obtain information concerning the Appellant and her Dutch family and failed to examine the court documents, pursuant to UCCJEA Family Code § 3426 (b)." As discussed above, the court had jurisdiction under the UCCJEA and the failure to expressly address mother's arguments under the Hague Convention was harmless.
Mother contends the court "failed to dismiss the minor child's application for guardianship due to the absence of mandatory Form 3710 Ex-Parte Application to Waive or Shorten Notice of Hearing on Temporary Guardianship by Respondent Minor Child, Violating CRC 7.1012." There is no dispute that mother participated in the hearing on the application for a temporary guardianship and was given sufficient notice of the hearing on permanent guardianship, which is the order being reviewed on appeal. Mother's failure to object to the form of notice she received before the hearing on temporary guardianship constitutes a waiver. (See 35A Cal.Jur.3d (May 2018 update) Guardianship and Conservatorship, § 303 ["[T]he appointment of a guardian cannot be collaterally attacked on the ground of failure to give the required notice to a person entitled thereto if that person . . . made an appearance in the proceeding."].)
Mother contends the court "failed to acknowledge that at the time of signing the consent and nomination of guardian on October 21, 2016, [father's] cognitive functioning was impaired due to terminal brain cancer and intense chemo therapy treatments, spanning at least 6 months." As minor notes, mother did not challenge father's competency in the trial court. In any event, father's competency to nominate a guardian was not critical to the court's decision. The absence of a finding regarding his competency does not impact mother's right to due process.
Mother contends the court erred in proceeding with the guardianship hearing before an investigation was completed as required by Probate Code section 1513, subdivision (a). This section reads in relevant part, "Unless waived by the court, a court investigator, probation officer, or domestic relations investigator shall make an investigation and file with the court a report and recommendation concerning each proposed guardianship of the person or guardianship of the estate. . . . Investigations where the proposed guardian is a nonrelative shall be made by the county agency designated to investigate potential dependency. The report for the guardianship of the person shall include, but need not be limited to, an investigation and discussion of all of the following: [¶] . . . [¶] (4) The anticipated duration of the guardianship and the plans of both natural parents and the proposed guardian for the stable and permanent home for the child." Mother does not dispute that a report regarding the proposed guardianship was prepared by the probate court investigation unit. Although somewhat unclear, mother seems to suggest the report is inadequate because it was not prepared by the correct agency and because it fails to expressly address the information required in subdivision (a)(4). She does not identify any missing information that arguably would have affected the outcome of the proceedings and she did not challenge the sufficiency of the investigation in the probate court. We will not consider her objections for the first time on appeal.
Mother seems to contend that the court improperly applied a "stable parent presumption" under Family Code section 3041, subdivision (c). This section reads, "As used in this section, 'detriment to the child' includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time." Mother's argument seems to be that the court mistakenly applied this provision to presume that removal of the minor from her placement with the co-guardians would cause detriment to the minor, whereas, she argues, the section should be understood to create the presumption that minor's removal from her custody would be detrimental to the minor. Mother concedes, however, that the court "found that the co-guardianship was in the best interest of the minor . . . and that returning the minor . . . to the custody of [mother] would be detrimental, but never mentioned the stable placement presumption when determining guardianship." The court's finding of potential detriment appears to have been based solely on the evidence and not on a presumption one way or the other. In all events its findings are in complete accord with section 3041, subdivision (c).
Finally, mother suggests that the court erred in considering father's intentions in selecting the uncle as minor's guardian. Before the trial court, minor argued that under Probate Code section 2105, subdivision (f) the co-guardians were entitled to a rebuttable presumption that leaving minor in their care was in her best interests based in part on father's selection of them as minor's guardians. While section 2105, subdivision (f) certainly implies that the trial court should consider the father's designation, nothing in the record suggests the court treated this factor as a rebuttable presumption or gave the factor undue weight. Consistent with that section, before granting custody to the co-guardians the court found that giving custody to mother, the noncustodial parent, would be detrimental to the minor. As discussed below, the record contains substantial evidence to support that finding.
Probate Code section 2105, subdivision (f) reads: "If a custodial parent has been diagnosed as having a terminal condition, as evidenced by a declaration executed by a licensed physician, the court, in its discretion, may appoint the custodial parent and a person nominated by the custodial parent as joint guardians of the person of the minor. However, this appointment shall not be made over the objection of a noncustodial parent without a finding that the noncustodial parent's custody would be detrimental to the minor, as provided in Section 3041 of the Family Code. It is the intent of the Legislature in enacting the amendments to this subdivision adopted during the 1995-96 Regular Session for a parent with a terminal condition to be able to make arrangements for the joint care, custody, and control of his or her minor children so as to minimize the emotional stress of, and disruption for, the minor children whenever the parent is incapacitated or upon the parent's death, and to avoid the need to provide a temporary guardian or place the minor children in foster care, pending appointment of a guardian, as might otherwise be required. . . ."
5. The court did not abuse its discretion in appointing co-guardians for minor.
As set forth above, under Family Code section 3041, a court may grant custody to a nonparent over a parent's objection only if it finds, by clear and convincing evidence, that granting custody to the parent would be detrimental to the child and that granting custody to the nonparent is required to serve the child's best interests.
Here, minor clearly and passionately explained why she was requesting guardianship: "I just don't think my mom has a good home environment. She doesn't provide an emotionally stable home or relationship for me to live in. She has fed me lies about my father and myself as I was growing up. She's the reason I had an unhappy childhood. [¶] . . . [¶] My true home is California. I have a community here full of people who love me, care about me and support me. And it's really humorous to me that my mom still wants to fight for my custody over my dad's dead body. [¶] And she stated on her website, [']If this is really what you want, I will respect your choice. If this is not what you want, you'd better let your voice be heard before it's too late. I understand you're grieving the loss of your father and that this is a very difficult time for you, but . . . you really need to think through this with a clear head. Also, you need to realize that your attorney . . . is submitting declarations to Judge Simmons that are supposedly written by you that are full of awful lies.['] [¶] But these declarations are written by me and they are the truth. And I might only be 13 years old, but I can speak for myself and I don't need my mom to call my truth lies. She can call me brainwashed and manipulated all she wants but these are true words. [¶] . . . [¶] And on this website that is mentioned, she included pictures of me that I want to be taken down because that's a violation of my privacy and, basically, information about my dad's former drug addiction, which I would like it if could be taken down . . . . [¶] And she called everyone in my community who has been caring for me and taking care of me . . . [a] child trafficker, human trafficker, awful words, including the court system, the judges, the lawyers, and everyone who has been concerned about me. [¶] . . . [¶] I don't think she realizes how much she is ruining my life . . . with all these lies and false accusations." Minor also described the terror she felt the last time her mother came to California and pleaded, "How can anyone . . . live this way? I have to literally live in hiding because of my mom . . . . [C]an't she please stop being the way she is about this? She says she's going to listen to me, but the second I say anything that's like, no, I don't want to be with you, she doesn't. [¶] I [am] not a four-year-old kid who likes it better at a friend's house. I don't walk around with a ton of make-up on with a Starbuck's in hand, choosing where I want to live. I'm almost 14, and I can speak for myself. And my mom claims that I'm just kind of here because I want to stay with my friends, but I also want to stay with my family. And I don't want to travel to Europe with her, as she said we would do. [¶] . . . [¶] . . . I'm a grounded 14-year-old girl who gets on the dean's list. When I tell you something, I mean it. It's not fair to me if I just sit around and let my mom harass me like that. It's not the life that I want to live." Minor's statement, her declaration and the declarations submitted by her attorney amply demonstrate that maintaining the stability and safety provided by her current caretakers was in minor's best interests and that removing her from their care would be detrimental to minor.
Mother has a website that details minor's alleged court-order abduction from the Netherlands and offers information and support to other parents who feel their children have been wrongly "trafficked through the courts." --------
Mother's argument that the court ignored critical evidence in granting the guardianship petition is not persuasive. She contends the court "ignored the fact that [mother] presented a top-notch international employment record spanning a quarter of a century, a spotless record worldwide, and a Certificate of Excellent Behavior issued by the Department of Justice and Safety of The Netherlands" and failed to acknowledge minor's "psychiatric diagnosis and mental state regarding her capacity to decide on guardianship decisions." Nothing in the record suggests that the court ignored mother's evidence. Moreover, even assuming that mother's evidence might have supported other conclusions, our task on appeal is not to re-weigh the evidence but only to determine whether the trial court's findings are supported by substantial evidence, which they unquestionably are.
6. The court did not err in ordering that visitation be at the discretion of minor.
Under Family Code section 3042, subdivision (a), "If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation." Here, after minor clearly and unequivocally indicated that she wanted no contact with her mother, the court ordered that mother "not . . . call or text [minor] unless it's initiated by [Minor]" and that any future contact and visitation would be left to the sole discretion of the minor. Contrary to mother's argument, the trial court had the authority to make these orders. Under the circumstances, the court did not abuse its discretion in doing so.
Disposition
The order granting minor's petition for guardianship is affirmed.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.