Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. S-1500-PB-55100 Louie L. Vega, Commissioner.
Ira L. Stoker for Objectors and Appellants.
Kilpatrick & White and Michael R. Kilpatrick for Petitioner and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On January 26, 2006, appellant step-grandparents Andy and Rose Ann Erberich filed a petition for appointment of temporary guardian of the person of minor.
On January 31, 2006, the court conducted an ex parte hearing and granted the petition for temporary guardianship finding guardianship necessary, convenient, and in the best interests of the minor.
On February 1, 2006, appellant step-grandparents Andy and Rose Ann Erberich filed a petition for appointment of guardian of the person of minor. A hearing on the Erberichs’ petition was set for March 6, 2006.
The record on appeal in the instant case did not include a copy of appellants’ February 1, 2006 petition for appointment of guardian of minor’s person, although appellants designated that document as a record to be incorporated in the clerk’s transcript on appeal. We independently reviewed appellants’ petition for appointment of guardian after directing transmittal of the superior court file.
On March 7, 2006, respondent de facto father filed a petition for appointment as guardian of the person of minor.
On April 18, 2006, the Honorable Louie L. Vega, Commissioner of the Superior Court acting as Judge Pro Tempore, extended appellants’ letters of temporary guardianship to June 14, 2006, and set a hearing on appellants’ and respondent’s respective petitions for that same date.
On October 2 and 4, 2006, following numerous extensions of appellants’ temporary letters and the filing of various pleadings, the court conducted a contested hearing on the parties’ respective petitions for guardianship.
On December 22, 2006, following the filing of written closing arguments, the court filed minute orders granting the petition of respondent and denying the petition of appellants. In written rulings attached to the minute orders, the court stated in relevant part:
“It is clear to the Court that there is a need for a guardianship. It is in the best interest of [minor] that a guardianship be granted. Her mother has consented to one of the petitions, [James H.’s].
“First, quite frankly, the court was disturbed by the evidence that [appellant] Andy Erberich, [mother’s] former step-father, completely severed his relationship with her when he divorced her mother. He was her father for all intents and purposes and then he completely cut her out of his life without any regard for how it would affect her. He has no ties to her now, but for the instant petition. It raises serious concerns that he would not foster any meaningful relationship between the [minor] and her mother should his petition be granted.
“Turning to the [James H.] petition, it has been shown to the Court’s satisfaction that he has established a genuine relationship with the minor.... It ... has also been amply shown that the minor would benefit from being able to have visits with her mother in a non-hostile environment, which [James H.] can provide. The Court does not believe that [James H.] would thwart the purpose of the guardianship by allowing the mother unfettered access to the subject minor.
“The court further finds ... a guardianship necessary and convenient. Moreover, the Court finds that it would be detrimental for the subject minor ... to be in the care and custody of her mother ....”
On January 22, 2007, appellants filed a motion to stay execution of the December 22, 2006 ruling pending appeal and for alternative relief to award a split visitation order pending appeal.
On February 2, 2007, respondent filed written opposition to the motion to stay.
On February 6, 2007, the parties submitted the motion to stay without argument and the court summarily denied the motion by minute order.
On February 23, 2007, the court issued and filed letters appointing respondent the guardian of minor’s person as well a formal order of appointment.
On February 27, 2007, appellants filed a timely notice of appeal from the order of appointment.
An appeal may be taken from an order made appealable by the provisions of the Probate Code. (Code Civ. Proc., § 904.1, subd. (a)(10).) With respect to guardianships, the grant or revocation of letters of guardianship constitutes an appealable order. (Prob. Code, § 1301, subd. (a).)
Appellants’ opening brief does not include a formal “Statement of Facts” or summary of significant facts as required by California Rules of Court, rule 8.204(a)(2)(C). We have independently summarized the record of the hearing.
Introduction
Appellants have compiled the following list of interested persons to assist the reader in reviewing the instant case:
--Appellant Andrew K. “Andy” Erberich (Andy)—stepfather of minor’s mother, Julie, and step-grandfather of minor;
--Appellant Rose Ann Erberich (Rose Ann)—spouse of appellant Andy K. Erberich;
--Minor S.H. (minor), seven-year-old biological daughter of Julie and Kevin E., and step-granddaughter of appellant Andy K. Erberich;
--Julie (Julie), step-daughter of appellant Andy K. Erberich and biological mother of minor;
--Respondent James H. (James or James H.), former boyfriend of Julie, and minor’s “defacto father”;
--Kimberlina H. (Kimberlina), current girlfriend of respondent James H.;
--Andrea O’Tool (Andrea), biological daughter of appellant Andy K. Erberich and half-sister of Julie;
--Amber Erberich (Amber), biological daughter of appellant Andy K. Erberich and half-sister of Julie;
--Kevin E., biological father of minor;
--William “Billy” T. (Billy), present boyfriend of Julie and biological father of Julie’s two other biological children; and
We utilize the first names of the parties and other interested individuals in this appeal for the ease and convenience of the reader and with all due respect for those associated with this guardianship matter.
To the list we add Tina Lynn Erberich (Tina) Andy’s former wife and mother of Julie.
Summary of Testimony at October 2 and 4, 2006 Guardianship Hearing
Appellant Andy Erberich testified he had been married to appellant Rose Ann Erberich for nine years and worked as a truck driver. Prior to his marriage to Rose Ann, Andy was married to Tina. He explained that Tina is the mother of Julie who, in turn, is the mother of minor. Andy married Tina when Julie was age three and divorced Tina in 1994 when Julie was age 14. After the divorce, Julie moved in with her grandmother. Andy had sporadic contact with Julie since 1994. Right after the divorce, Julie would spend some weekends with Andy and was at her grandmother’s house the rest of the time. Julie later moved out of town and lived with relatives in Grass Valley and Concord, California. She eventually moved back to Bakersfield and then to Maricopa.
Andy became acquainted with respondent James H. when he was Julie’s boyfriend. James and Julie lived together for two or three years and minor lived with them. Minor’s biological father is one Kevin E. with whom Julie had a previous relationship. Julie eventually left James and lived with Tina and Tina’s boyfriend near South High School in Bakersfield. Minor resided with Julie at that time. After James and Julie separated, he lived at his mother’s home. Julie became involved with Billy in 2001 and moved to Maricopa with him. In September 2005, Julie and Billy moved to Oklahoma with minor and their two children a four-year-old and a one-year-old.
After Julie separated from James but before she moved to Maricopa, appellants had visitation with minor once or twice a month. Andy’s daughter Andrea would go to Julie’s house, pick up minor, and bring her to appellants’ home. When Julie moved to Maricopa in 2001, Andy did not see minor as much. James eventually started picking up minor on a regular basis and appellants then saw more of minor. According to Andy, “We’d see her more than once a month. But she would stay with us overnight maybe once a month, maybe every two months.” He explained they had “a lot of barbecues, birthday parties, that sort of thing” in 2001 and 2002. Either James or Andrea would transport minor to see appellants on weekends. Andrea, a college student, would pick up minor for a weekday visit about once every two months. In 2003, appellants visited with minor about once a month and James or Andrea would handle minor’s transportation. This visitation arrangement prevailed until Julie moved to Oklahoma.
In the Christmas season of 2005, Julie came to visit in California. She brought minor and her two other children, arriving by bus on December 16. Andy supplied two bus tickets. James provided another bus ticket and picked up Julie and the children. Julie stayed at appellants’ home for several nights and then visited Tina. Appellants did not see Julie much after that. James would bring minor to appellants’ home during the day and Andrea or her sister Amber would watch minor while James went to work. Because Andy worked from 1:00 p.m. to midnight, he would see minor every morning. Andy explained appellants and James essentially shared minor each day of that Christmas season.
On Christmas Day 2005, Julie came to appellants’ house with her two other children and she was “twitching and antsy and ready to get out of there.” Minor was not with appellants but they had seen minor earlier that day for a gift exchange at another family member’s home. At the time of Julie’s arrival, minor was with James. Julie and the other two children stayed for about 90 minutes, long enough for the children to open their Christmas presents. Julie then left as Tina was waiting outside in the car.
Andy next spoke to Julie on January 14, 2006. The topic was her lifestyle and Andy questioned whether Billy was wanted by authorities for his criminal past and whether Julie was under the influence of drugs. After Andy and Julie spoke, she “freaked out” on the telephone. James subsequently called Andy and asked what Andy had said to make Julie so angry. Andy explained the nature of his conversation with Julie. James expressed concern about minor going back to Oklahoma. James did not initially think minor should go with Julie back to Oklahoma. According to Andy, James later “was willing to make a deal if I allowed Julie to take [minor] back for visitation with her.” Andy said he was not agreeable to allowing Julie to take minor because Julie would not come see Andy and because Julie “was not right.” Andy said Billy had come into town to get Julie. Andy was also concerned because Julie had a drug problem in the past. James indicated to Andy that he was also concerned about Julie’s drug problem.
James told Andy that Julie had a dispute with Tina after Julie and the children left appellants’ home during the 2005 Christmas season. According to James, Tina threw Julie out of her car at night. James offered to house Julie and the two other children but she did not avail herself of that offer. Julie was supposed to return to Oklahoma on December 31, but did not depart until Sunday, January 15, 2006. She left without minor. Prior to Julie’s departure, Andy spent two days talking to Julie on the telephone. James was present during these calls and he tried to negotiate with Julie for visitations with minor. According to Andy, “He [James] said that she [minor] would go back, and then he’d get her again at Easter. And then next year, she would be staying here. Next school year.” Andy did not agree with that position.
Andy testified that minor was doing well in school in Kern County. He explained that she started school in January 2006 and was two months behind the other first grade children. However, in the next school year she was enrolled in a magnet program at school. When appellants first obtained custody of minor, she acted out in little ways, such as calling adults by their first names rather than using the titles “Mr.” or “Mrs.” Andy testified that minor now addresses him as Grandpa and his wife as Grandma Rose Ann. Andy also said minor did not have problems with other children at school and had no bad reports about her behavior at school. Minor also got along well with appellants’ daughter Amber.
In Andy’s view, minor and Julie’s two other children “belong together” and he had no objection to Julie having visitation provided she was subject to court-ordered counseling and drug-screening. Andy said he had concerns about James obtaining a guardianship over minor. Andy explained: “I believe, although James’ heart in the right place – he’s a really good guy – I still think Julie pulls his strings, and she would manage to get [minor] without getting proper drug treatment or counseling.”
Andy acknowledged that James cared for minor for four months after he and Julie separated, a period followed by Julie’s move to Oklahoma. Andy also said James had been able to visit minor “one day every two weekends ... for a few hours” during appellants’ temporary guardianship. Andy said those visits took place at appellants’ home because Andy was afraid James might turn over custody of minor to Julie “without her being in counseling and all that.” Andy said he spoke to Julie about her drug use during the four-month period between her separation from James and her departure to Oklahoma.
Andy said Julie had called appellants’ home since her move to Oklahoma and asked about minor’s welfare. When Andy asked whether Julie had spoken to minor about James’s visitation, Julie said “that she [minor] would be moving with James before too long, and then that she’d be moving back and forth between her and James.” According to Julie, that was to occur as soon as minor moved in with James.
On cross-examination, Andy acknowledged his primary issue about James’s having a guardianship was that James might allow minor to return to Julie in a drug environment. Andy characterized James as a good, hardworking, law-abiding, respectful guy. Andy also acknowledged James had a good relationship with minor and could provide her with an appropriate environment. Andy further acknowledged that James met Julie before she delivered minor and that James raised minor in his own home for at least the first two years of minor’s life. Andy further agreed that minor spent a substantially significant portion of her time with James on weekends. He acknowledged minor spent far more time with Julie and with James than she did with appellants prior to their temporary guardianship.
Andy agreed that appellants had limited James’s visitation with minor during the temporary guardianship because of a concern that James had made some deal with Julie. Andy said he was concerned that James was going to run off with Julie and violate the court’s orders. Upon further questioning, Andy explained that James would not run away but would allow Julie to take minor from his custody. Andy said he had spoken with James at one point about a deal for visitation. Andy testified: “He [James] actually told me that he had told her [Julie] if she signed the guardianship – sign her over to him that it would look better for her for CPS with the other kids ... and that they would share custody with her later on.” Andy further explained that he would not have a problem with James having weekends with minor so long as Julie was subjected to supervised contacts, including drug testing, drug counseling, and supervised visitation.
Respondent James, a pool service technician, testified he resided in a Bakersfield home with his girlfriend, Kimberlina, and her two minor children. James said he had known Kimberlina for over three years and has resided with her for about 14 months. James said he had known Julie for about 12 years at the time of the hearing. They had first met as freshmen in high school and met again in November 1998, when James was an oilfield service technician. They started dating in early 1999 and minor was born in April of that year. At the time of minor’s birth, Julie was living with her mother. In May 1999, Julie moved into James’s mother’s home and lived with James for about two and a half years. At the end of that period, Julie moved to her mother’s home for a brief period and then moved to Maricopa with Billy. James rented an apartment in southwest Bakersfield.
During the time James lived with Julie, he never witnessed her use of drugs but did see her occasionally use alcohol. According to James, neither he nor she abused alcohol. However, when James separated from Julie it was due to drug use on her part. James told Julie she was going to lose minor if she did not straighten up. He also told Julie that minor needed to remain with him and minor did so for a period of four months. Julie had visitation with minor whenever she called, approximately once a week. James did not see any relationship between Julie and appellant Andy during that four-month period. Moreover, James did not recall taking minor to see Andy during that period.
James explained he had gone out of town for two weeks of training and when he returned it was evident from Julie’s erratic behavior that she had been using drugs. After an argument, Julie confessed she had been doing drugs.
Later in his testimony, James said he took minor to appellants’ home “on a regular basis for barbecues or family gatherings.” He also said he took minor to appellants’ home for visits approximately once a month. James said he believed appellants had a close relationship with minor and he tried to maintain that because it was in minor’s best interests.
After the four-month period, James gave minor back to Julie so she could enroll minor in a Maricopa preschool. James and Julie agreed that James would get minor at least every weekend. This arrangement lasted until Julie moved to Oklahoma. After Julie moved to Maricopa, she told James she had been seeking counseling and was trying to straighten up her life. He questioned Julie about her drug use on a regular basis but she always told him “no,” i.e., she was not using drugs. However, he still had questions about her possible drug use. Julie lived in Maricopa for three years and then moved to Oklahoma in September 2005. At the time prior to Julie’s move, James called the Maricopa house on a regular basis and spoke with minor about twice a week. Before Julie moved, she told James she was going to visit family in Oklahoma for approximately two weeks.
James said he contacted a lawyer about the possibility of a guardianship for minor but Julie was unwilling to sign guardianship over to him. In the alternative, James sought to negotiate as much visitation time as Julie was willing to grant.
James said he got along well with appellants and went fishing with Andy on an occasional basis. James said he was invited to all of their family gatherings and they were invited to his family gatherings. James said he got along well with appellants until the issue of the guardianship arose. James acknowledged appellants had a clean, well-kept home that was a positive place for minor. He further acknowledged that minor was well-fed and well-taken care of in appellants’ home. However, he was concerned about recent visits with minor because several times she told James what to do rather than ask. James said she was very impolite and when he reprimanded her, minor said that “Grandpa” was her boss. James said he felt betrayed as a result.
With respect to a “deal” with Julie, James stated: “She and I have – do have an agreement on what visitation would be, which would be she’s welcome to call. She’s welcome to come and visit here. She has agreed to random drug testing or any testing that would be advised. But that [minor] would not be returning to Oklahoma.” James said the best thing for Julie was for her “to be away from this area which is where she’s gotten in trouble.”
James characterized his relationship with Julie as a friendship of sorts. James acknowledged that Andy raised Julie for at least 10 years but said their current relationship entailed very little talk and discussion. He noted that Julie visited Andy on a fairly infrequent basis. James was present during several of those visits and Andy attempted to discuss Julie’s lifestyle with her. James had concerns about Julie’s lifestyle in Maricopa because he was concerned it entailed drug use. James noted Julie’s Maricopa home burned down at one point and Julie went to live with Tina and her boyfriend. Although James said appellants’ visitations with minor were infrequent, he did acknowledge they were consistent over a time period. He further acknowledged that appellants acted as grandparents toward the minor.
James said minor stayed with him from January 3, 2006 through January 16, 2006 but was with appellants when Julie left for Oklahoma on the latter date. On January 12 or 13, Julie agreed with James to leave minor in California. James elaborated:
“Mr. Erberich and I discussed not wanting [minor] to leave to go back to Oklahoma with ... Julie for fear of possible drug issues. … [A]t that point, they informed me that they were going to contact a lawyer and find out what our options were for doing something like that. ... I believe it was before their consultation with the lawyer that everything kind of happened. Mr. Erberich informed Julie that he wasn’t going to allow her to take [minor] back to Oklahoma. She called me. I talked to her about ... [minor] staying here and that ... Mr. Erberich didn’t believe that it was in [minor]’s best interest. I agreed with him and that I wanted her to stay here. We had a fairly drawn out discussion at that point. ... I finally got her to agree – started talking about the guardianship….”
James said he was the only father minor had ever known and that Billy had never taken the role of a father. James also believed minor had lived with him for a longer period of time than with Billy.
Andrea testified she was the daughter of appellant Andy, the half-sister of Julie, and the aunt of minor. At the time of the hearing, Andrea lived in Bozeman, Montana. Prior to July 2004, Andrea lived with appellants.
When Julie’s house burned down in Maricopa, Andrea’s mother and mother-in-law had gathered some things for Julie, and Andrea and James drove to Maricopa to deliver them. According to Andrea, James was aware that Billy had outstanding warrants and thought that Julie might be leaving for Oklahoma. Andrea said James had always been concerned about minor and he spoke of trying to prevent Julie from moving to Oklahoma.
Andrea said appellants had twice-a-month visits with minor when Julie lived in Maricopa. Andrea herself saw minor almost every weekend with James. At least every other weekend, minor would spend one night at appellants’ home. Sometimes James would drop minor off and sometimes Andrea would pick her up. Andrea said she visited Julie’s home in Maricopa and described the interior as messy and cluttered. Andrea did not consider the conditions in the Maricopa home fit for child-rearing purposes. When Julie’s home burned down, appellants provided replacement furniture and had it transported to Maricopa.
Andrea said she and James were in constant contact until the guardianship issue arose in December 2005. James was concerned that he would not be able to get minor back to Bakersfield after Julie moved to Oklahoma and was further concerned that minor was not in school. Andrea described minor’s relationship with Andy as a loving, structured relationship with her “grandpa.” On cross-examination, Andrea acknowledged that Andy acted as minor’s grandfather for her whole life and that James acted as minor’s father for that same period. Andrea acknowledged that James is a good guy who wants the best for minor who would provide a good home for her. Andrea also agreed that Andy should remain in minor’s life as a grandfather and that James should remain in her life as a father.
Appellant Rose Ann testified she had been married to Andy for nine years, that they owned their own home, and that Andy’s daughter, Amber, and minor resided with them. Rose Ann said minor is enrolled in the second grade in a magnet program and that Andy takes her to school and picks her up two days a week. Rose Ann said she picks minor up from school three days a week. Rose Ann also said she, Andy, and Amber assist minor with her homework. Rose Ann said minor attended first grade when she came back from Oklahoma. Minor was behind in her studies, mostly in math. However, she attended summer school and caught up as she entered the second grade.
Rose Ann later explained the magnet program is an after-school care program that runs from 2:30 to 5:00 p.m. on school days.
Rose Ann described her relationship with minor as a grandmother/grandchild relationship entailing “good times” and “discipline times.” She called minor “one of my grandchildren” and said she was prepared to raise minor just as she raised Andy’s “other two daughters.” Rose Ann disagreed with the possible appointment of James as minor’s guardian because “Julie pulls the strings.” Rose Ann explained that “[s]he tells him what to do.” Rose Ann elaborated:
“[M]y concern was the day that this all came to a head. It was that Sunday. And, you know, we didn’t want [minor] to go back with her mother .... We had suspicions that he [Billy] had a felony warrant and he was on the run. And ... I basically said, no, I don’t want her to go back because I’m scared that she’s gonna go back and we’re never going to see her again and she’s going to be in a bad environment. And [James] was pretty much the whole time like undecided. He was distraught. And right about the time that all this came to a head, he was on his cell phone with her. And he had come back and told us that, you know, he talked to Julie and, you know, they are gonna work out a deal. And that bothered me.”
Rose Ann further explained that James was attempting to negotiate with Julie after appellants had made a decision to file for guardianship. James indicated he was going to agree with Julie to allow minor to go back to Maricopa.
Rose Ann acknowledged that she and Andy had encouraged James to adopt minor on numerous occasions. James told them he spoke with “legal aid” and they said he had no rights to do so. When asked why appellants were now resisting his application for guardianship, Rose Ann said James had done weekend parenting but that only appellants had carried out the role of weekday parents by taking minor to school, getting insurance, and taking minor to the doctors. Prior to the guardianship petition, Rose Ann considered James a part-time parent.
Rose Ann first became concerned about Julie’s drug usage in 2002, when Julie behaved erratically and nervously at a birthday party. However, appellants did not contact Child Protective Services, law enforcement, or counsel for preparation of guardianship papers. In 2005, appellants went to Julie’s Maricopa home, there was no running water, the temperature was over 100 degrees, and “[a]ll they had was fans going.” Rose Ann conceded that she did nothing in that situation.
Rose Ann was aware that James was very concerned about minor and that he had discussions with Julie to get minor back from Oklahoma. Rose Ann stated she supported James’s efforts at that time to get minor to attend school and live in Kern County. Rose Ann acknowledged that she and Andy did not have contact with Julie when the latter was in Oklahoma. Appellants were aware that James and Julie had conversations between September and December 2005, and Julie returned with minor at the end of that period. Rose Ann also acknowledged that James kept appellants informed of his progress in persuading Julie to return with minor. As far as Rose Ann knew, only James attempted to persuade Julie to bring minor back to California and that he acted in minor’s best interests. Rose Ann said she and Andy paid for two bus tickets and James paid for one bus ticket when Julie returned to Kern County in December 2005.
Rose Ann said Julie’s infant child did not need a bus ticket so only three tickets were purchased. Presumably, one ticket was for Julie, one was for minor, and one was for Julie’s older child by Billy.
Upon Julie’s return to Kern County, minor spent the period from mid-December 2005 to January 16, 2006, with James. During that period, appellants encouraged James to contact Child Protective Services so that the authorities would intervene. Rose Ann said appellants had no concerns with James’s care of minor and acknowledged he was generous in allowing visits between minor and appellants. Rose Ann conceded James was more generous and flexible with visitation than she and her husband had been with James after the grant of the temporary guardianship.
Julie testified she was minor’s biological mother and minor’s biological father, Kevin E., had never seen minor. Julie said she and James dated in high school and started dating again when she was about three months pregnant with minor. Julie said James had been a part of minor’s life ever since. At the time of minor’s birth, James was present, cut the umbilical cord, and brought Julie and minor home from the hospital. Julie said minor refers to James as “her daddy.” Referring to James, Julie testified: “I’ve never met a more decent man before in my whole life. She [minor] couldn’t – like there’s no blood relation that you could give the two of them that would make him a better father. He has just been outstanding.”
When James and Julie were together, they took minor to appellants’ home for barbecues and “that was the relationship,” according to Julie. James, Julie, and minor would visit for the night or on a weekend and minor would play. Appellants always held themselves out as minor’s grandparents. However, Andy was not Julie’s biological father. He married Julie’s mother when Julie was age three and divorced Julie’s mother when Julie was age 13 or 14. Julie said Andy always treated her as his daughter up until the point when Andy and Tina divorced. At that point, he severed all contact and Julie was hurt and confused. Julie said she contacted Andy after the dissolution and he said if she wanted to have contact, it was her responsibility.
Julie said she, James, and minor lived as a nuclear family for two and a half years. She left James because she started doing drugs and she said James did not tolerate such behavior. When Julie moved from Bakersfield to Maricopa, minor stayed with her except for Friday nights, when James would pick minor up. For a four-month period, minor lived almost exclusively with James because Julie was running around and partying. When Julie finally moved to Maricopa, James allowed Julie to have minor back. However, he first questioned Julie about her drug usage. Julie maintained she had quit and had cleaned up.
Julie said she stayed with minor in Maricopa until September 2005. James visited them every weekend, picked up minor on Friday night, and brought minor back on Sunday night. Julie said appellants never visited minor at her house but James was there every weekend. Julie said she moved to Oklahoma in September 2005 because the Kern County area was “tied with drug use” and she wanted a more wholesome environment. Julie acknowledged her boyfriend, Billy, had some legal issues but she did not tell James about them.
Julie also testified that Billy was the father of her two other children.
When Julie was getting ready to go to Oklahoma, she told James she was just taking minor for a visit of several weeks. Julie agreed to send minor back after a couple of weeks so minor could live with James and attend school in Kern County. Julie did not follow through with the agreement because she had “a little bit of a hard time letting her go.” Julie ultimately returned to Bakersfield in December 2005 because minor wanted to “see her daddy for Christmas.” Julie, minor, and Julie’s two children with Billy traveled by Greyhound bus to Bakersfield. Billy did not come with them because he was working.
James met Julie and the children at the Greyhound Bus Station. He then drove Julie and the children to appellants’ home. After a brief visit, James took minor to his home and Julie stayed at appellants’ home with the other two children. Julie and the children stayed with appellants for a day or two but appellants had mentioned that other people were coming to stay in their home. They asked whether Julie could visit with Tina or someone else because they were going to have a full house until after Christmas Eve.
Julie said she and James had discussions about minor during the visit. They ultimately decided that minor would stay with James because minor missed him so much. Because James was not minor’s biological father, they figured he would need “some kind of guardianship paper” but did not know exactly what was needed. Appellants never told Julie they wanted guardianship of minor or wanted to keep minor. Julie acknowledged appellants did not accept her drug lifestyle in the past but said she was “a stay-home mom” who did not do drugs at the time of the guardianship hearing. Julie further testified she did not “pull the strings” in James’s life.
At the conclusion of her Christmas 2005 visit, Julie and her other two children caught the flu. Billy drove out to Bakersfield because a bus trip was hard with small children. She initially wanted to get together with James and Billy to say goodbye to minor and to figure out the necessary paperwork. Minor was at appellants’ house and Andy became irate when Julie called him. She finally advised James to pick up minor from appellants’ house and said they could figure out the paperwork and handle it by mail. When Julie left for Oklahoma, she intended that minor live with James. Julie ultimately signed a consent form for James to be nominated as her guardian.
Julie said she and James spoke about visitation and decided that minor could stay at his home so that she and her other children could visit with minor. James told Julie he wanted to make sure she was not using drugs and indicated she might have to take a drug test. Julie believed it was better for minor to be with James rather than appellants because “James has been her father since the moment she came into the world. And I think that – I think that given a choice between grandparents and a parent, a child should be raised by their parent.”
On cross-examination, appellants’ counsel asked whether Billy was a fugitive in California. Julie said she was unaware of any outstanding felony warrants against Billy. During the 2005 Christmas season, Julie had a telephone conversation with Andy and he brought up the issue of felony warrants against Billy. Julie said she never checked into that.
Counsel also cross-examined Julie about the fire at her Maricopa home. She acknowledged that Rose Ann, Andrea, and the latter’s husband helped her out by bringing furniture to her in Maricopa. However, she did not consider that “really a visit.” She said James always let her borrow money when she needed it.
With respect to drug usage, Julie said she used drugs every other day when she was living in Maricopa. James did not really check on Julie during this period because she would let minor run out to James’s car when he picked her up on Friday evenings. Julie noted that minor went to school every day, she dressed fine, and the house and yard were clean. James sometimes asked how she was doing and Julie would respond, “‘fine.’”
Julie acknowledged that Billy was a tattoo artist who kept a dental chair for tattooing inside the Maricopa home. However, Billy practiced his tattoo art in a building behind the home.
When Julie was preparing to depart to Oklahoma at the end of the 2005 Christmas season, she had discussions with James about minor staying in California. However, it was hard for Julie to come to terms with the decision. At one point, Andy called Julie about minor’s status and Julie described their conversation:
“I said that I had already spoken with James and that I had told James that I was gonna let her stay with James. [A]ll I wanted to do was pick her up so we could get together and – you know what I mean? -- I wanted to hug her good-bye and whatever and get whatever – like I needed to give James her insurance card and all that good stuff and – and he was just – he was just not being very pleasant about it.”
During that conversation, Andy told Julie to bring the cops if she wanted to pick minor up from appellants’ home. Prior to that conversation, she and James inquired about minor’s whereabouts but Julie said appellants kept dodging their inquiries.
Julie said she had no problem with James taking minor to appellants’ home for weekend visits. Julie said Andy treated her well as a child but that changed when he divorced her mother. When Julie lived in Maricopa, Andy would speak to her about drug usage every time he saw her. She did not like his statements, especially when she was using drugs. Julie said she minimized her contact with him because he would never call her and she had to make contact with him. Julie said she was not angry at Andy but felt hurt. Julie said she tried to build a better relationship with Andy but his application for guardianship “has really put a stump in any kind of relationship that we could have.” She nevertheless acknowledged that appellants welcomed her and treated her well during the 2005 Christmas season. At the conclusion of her testimony, Julie said she had been sober for almost two years.
After Julie was excused from further testimony, James was recalled as a witness. James examined a family photo album and said he began his relationship with Julie when she was approximately four months pregnant. He was present in the hospital when minor was born. When Julie and minor were discharged, James took them to Tina’s house, Julie’s residence at the time. James visited Julie and minor four or five times a week. James and Julie began living together approximately two weeks after minor was born and stayed together until she was about two and a half. James said minor went to kindergarten in Maricopa and scored very well in school. She missed some school in Oklahoma and got a bit behind but then quickly caught up. James was concerned about minor’s education when Julie took her to Oklahoma. While minor lived with Julie in Oklahoma between September and December 2005, James would call and speak with minor two or three times a week.
James said Julie stayed at his house for several days while she was testifying at the guardianship hearing. He and Julie contacted appellants and attempted to arrange a visit with minor. Appellants allowed Julie to visit but not James. James said he had noticed behavioral changes in minor since the grant of temporary guardianship to appellants. James testified:
“… Her attitude towards other people. I stated on Monday that during a visit within the last month, I was playing with her playing yo-yo. We were coloring pictures. And she began – instead of asking or being polite about things, she was instead just telling both myself and the Erberiches’ daughter, Amber, what to do. And I reprimanded her for it, and she told me that I’m not her boss. I’m not the boss of her.”
James said he was also concerned because appellants informed him of their intent to tell minor about the biological father she has never seen. In James’s view, minor was not going to understand and disclosure of that information would have a big impact upon her. James believed that disclosure should be accomplished by a professional over a period of time. James said he moved from an apartment to a house approximately two and one-half months before the hearing on the petitions. The house was larger than his former apartment and had a pool and a backyard. James explained that if he were appointed guardian the minor would share a room with Kimberlina’s eldest daughter. According to James, Kimberlina gets along well with minor and her children refer to minor as their sister.
With respect to his work schedule and minor’s schooling, James said he is self-employed in the pool maintenance field and completes his work day between 2:30 and 3:00 p.m. Minor would attend the elementary school located about three blocks from his home. James said he would pick minor up from school and spend the afternoons with her. James said he would allow appellants to visit minor if he were granted guardianship.
James said he maintained the original impression of minor’s footprints that were taken at the hospital at the time of her birth. He also kept her hospital beanie, her first pair of shoes, and her first blanket. He described these items as “keepsakes” and said the minor was the most important thing in the world to him. As to Julie’s influence, James said he made decisions on his own and any decisions regarding minor would be made in minor’s best interests. James said he considered minor no differently than a biological child and believed his home was the best place for minor to grow up. James said he spoke with Kevin E., minor’s biological father, several years earlier and Kevin’s only interest was in suspending or eliminating his parental rights to avoid paying child support.
On cross-examination, James said he had seen minor at Christmas time in 2005 and on alternate Saturdays for about one year. These Saturday visits lasted for about one or two hours. James said his contact with minor had been limited during that period and that appellants acted as her parents. Prior to minor’s move to Oklahoma, James only saw minor on weekends and did not get her off to school on weekday mornings. However, he did take her to Children’s Hospital north of Fresno on three occasions. Although James did not financially support minor when she was in Maricopa, he did provide most of her clothing and school supplies. James believed that appellants provided Julie some furniture after her Maricopa house fire but he was not aware of any other support on their part. James acknowledged that if the court allowed him visitation on weekends, he would virtually be in the same position he was in prior to the temporary guardianship.
James’s girlfriend, Kimberlina, testified she and her two minor children lived with James. Kimberlina said James plays the role of father in the house, has a good relationship with her children, and is very kind and considerate with them. Kimberlina said she has been dating James for three and a half years and minor visited their home on weekends. Kimberlina observed the relationship between James and minor and described it as “really good.” She said minor addressed James as “Daddy” and he referred to her as “his daughter.” Kimberlina also said James provided for minor’s emotional and financial needs when she was with him.
When asked about Julie’s move to Oklahoma, Kimberlina said she and James found out in late September 2005 that Julie originally was not planning on a move. According to Kimberlina, Julie was actually in talks to have James act as minor’s guardian. Julie was having problems with her most recent pregnancy, could not travel, and told James she would wait several months before bringing minor back to Kern County. James had advised Kimberlina that minor would be living in their shared household. Kimberlina said, “I love [the minor],” and described her and her other two children as “our kids.” Kimberlina said she had no problem having minor in her home. She explained that she and James arranged for bunk beds in one bedroom so that minor and Kimberlina’s daughter could share a room.
Kimberlina said she currently worked as an administrative assistant for Granite Construction. Her work schedule is 7:30 a.m. to 5:00 p.m. on Monday through Friday. Kimberlina also said she is attending Bakersfield College on Tuesday and Thursday and her goal is to enroll at California State University, Bakersfield, obtain a Bachelor of Arts degree in business administration, and eventually become a teacher.
Kimberlina said she had seen James return from visits with minor and observed: “It’s a bitter sweet. He’s really glad he got to see her, but it’s a really uncomfortable situation, and he wants to bring her home.” On cross-examination, Kimberlina acknowledged that James was not a stepfather to her two children. She said James is her boyfriend and they had intentions of getting married but those plans were “put on hold after this [guardianship proceedings] started.” She noted they had been together for three and a half years and James had assumed the role of the father in the household. Kimberlina said she used to go with James to appellants’ home but then they said she was no longer welcome. Prior to that, Kimberlina occasionally took her children to appellants’ home. Kimberlina thought appellants were good people and she was puzzled about their behavior after the grant of temporary guardianship. Kimberlina elaborated on redirect examination:
“Originally when this begun in December, we were all on the same track. And then the day that it went down, I actually ran round with Rose Ann to help Amber get ready for prom. And we had a really good relationship. We kept things light. It was my impression that we were all on the same side. Andy and Rose Ann said that they would actually financially back us up to go after guardianship, and then that same week told James he is no longer able to remove [minor] from the house. So just like that. And then a couple of months ago out of the blue, they said that I was no longer welcomed at the house. So it’s just all – so I haven’t seen [minor] for three months until Saturday – this past Saturday where I dropped James off, and [minor] saw me through the window, asked if she can see me, and she wasn’t even able to see me. So all of this is unjustified.”
During the three years Kimberlina dated James, the topic of guardianship came up several times. Kimberlina explained that James “saw a couple of lawyers and said they told him that he didn’t have a chance. So he thought, at this point, he needed to be in [minor’s] life. And he didn’t want to run the risk of Julie being upset and completely cutting [minor] out of his life.”
On redirect examination, Kimberlina said appellants’ property was well-kept but appellants engaged in behaviors that might adversely impact the minor. Kimberlina said Andy referred to minor and Amber as “tard,” and presumed that was a short form of “retard.” Kimberlina also said Andy was very insulting to Amber; he calls her lazy even though “she’s a very successful kid.” Kimberlina also said Andy always had a beer in his hand whenever they visited appellants’ home between the hours of 10:00 a.m. and 2:00 p.m. Kimberlina said their longest visit was about four hours and Andy drank beer the entire time. Kimberlina said Andy had always been very nice to her until recently.
Recalled as a witness, Andy admitted calling minor a “tard,” said the term was short for “retard,” and explained he uses the term when minor acts up or is silly. Andy explained the term is said in jest and is not intended as a reprimand to the child. Andy also admitted calling Amber lazy even though she is a bright, capable child. When asked why he referred to Amber as lazy, Andy said, “You should see her room sometimes.” Andy acknowledged drinking Ice House malt liquor but said he did not start drinking at 9:30 in the morning and that he was not an alcoholic. Andy also said he did not drink on work days and drank perhaps two or three beers on weekends. He admitted sometimes drinking more beers on a day that he barbecues.
DISCUSSION
On appeal appellants contend the trial court’s ruling on petition for appointment of guardian as well as its ruling denying appellants’ motion to stay that ruling or for alternate relief must be reversed as in reaching these rulings the court abused its discretion in various respects. In this regard, appellants’ raise six specific issues wherein they assert discretion was abused. We will address these assertions seriatim.
I.
DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO CONSIDER THE BEST INTERESTS OF MINOR WHEN AWARDING GUARDIANSHIP?
Appellants contend the trial court failed to consider minor’s health, safety, and welfare when awarding guardianship of minor’s person. Family Code section 3020, subdivision (a) states in relevant part:
Probate Code section 1514, subdivision (b) states: “In appointing a guardian of the person, the court is governed by Chapter 1 (commencing with Section 3020) and Chapter 2 (commencing with Section 3040) of Part 2 of Division 8 of the Family Code, relating to custody of a minor.”
All further statutory references are to the Family Code unless otherwise indicated.
“The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children….”
“When the various provisions of the Probate Code, Family Code, and Welfare and Institutions Code are read together, it is apparent that family reunification services are reserved to dependency proceedings, where a complex statutory scheme governs. In probate guardianship proceedings, like custody proceedings under the Family Code, the courts must determine which custody placement is in the best interest of the child but may not order reunification services. [¶]…[¶] A court in a probate guardianship proceeding faces a difficult decision regarding a child’s best interest in ruling upon a contested guardianship petition arising from the voluntary, extended placement of a child with a nonparent. In determining such a case, the court must look to all the circumstances bearing upon the best interest of the child, including the child’s emotional well-being and need for continuity and stability in relationships and care. [Citation.]” (Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 1432-1433.)
“The appointment of a guardian for a minor is a matter lying within the sound discretion of the court and the conclusion reached will not be set aside on appeal unless it is shown to have been reached as a result of an abuse of discretion.’ [Citation.] The burden of showing such an abuse of discretion, of course, is upon the appellant.” (Guardianship of Morris (1951) 107 Cal.App.2d 758, 762-763.) Discretion is abused when a court exceeds the bounds of reason, all of the circumstances before it being considered. Unless a clear case of abuse is shown, a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. (Golden Eagle Refinery Co. v. Associated International Ins. Co. (2001) 85 Cal.App.4th 1300, 1318; In re Tamneisha S. (1997) 58 Cal.App.4th 798, 806.)
“… [W]here a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the proper decision for that of the trial judge. The trial court’s exercise of discretion will not be disturbed on appeal in the absence of a clear showing of abuse, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. [Citations.] ‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.] … The showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion. [Citations.]” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)
In the instant case, appellants contend a “best interest” determination must take into account the health, safety, and welfare of the child and the record reveals “numerous facts ... evidencing a total disregard for the health, safety and welfare of [minor] by Respondent JAMES [H.] and her mother, JULIE .…” Appellants also submit “it is clear that [minor] had been neglected by [Julie],” that Julie had been involved with drugs from a time prior to minor’s birth to a date as late as January 2006, that the trial court erroneously concluded that Andy had completely severed his relationship with Julie upon divorcing her mother, Tina, and that the trial court failed to give appropriate consideration to the issue of stability and continuity of environment in determining the best interests of the minor child.
In making these various assertions, appellants cite to the portions of the record favoring their position and essentially ignore all other portions to the contrary. As noted above, the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion. (In re Marriage of Rosevear, supra, 65 Cal.App.4th at p. 682.) Discretion is abused in the legal sense whenever it may be fairly said that in its exercise, the court contravened the uncontradicted evidence. (Id. at p. 683.) Our independent review and recitation of the record evidence, set forth above, clearly demonstrates the best interests of minor comprised the focal point of the instant guardianship proceeding. The trial court was well aware of appellants’ allegations of neglect, Julie’s admitted history of drug use, the nature of the relationship between Andy and Julie, and the need for a stable environment for the minor. Although the burden is on the complaining party to establish abuse, appellants’ contentions—and their selective citations to the record—in the instant case are insufficient because they present a state of facts which simply affords an opportunity for a difference of opinion with the trial court. Expressed another way, two or more inferences can be reasonably deduced from the facts of this case and a reviewing court has no authority to substitute its decision for that of the trial court. (See In re Marriage of Rosevear, supra, 65 Cal.App.4th at p. 682.)
Appellants’ claim of an abuse of discretion must be rejected.
II.
DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO FOLLOW THE ORDER OF PREFERENCE SET FORTH IN FAMILY CODE SECTION 3040, SUBDIVISION (A)?
Appellants contend the trial court abused its discretion by failing to follow the order of preference set forth in section 3040, subdivision (a) when it awarded the guardianship of minor to James.
Section 3040 states in relevant part:
“(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:
“(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent....
“(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
“(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
“(b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.”
Appellants contend: “The Code places priority preference in favor of ‘the person or persons in whose home the child has been living in a wholesome and stable environment’. Only if there is no such person is the court to grant custody to another party.”
The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the best interest of the child. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Although section 3040 creates an order of preference for custody, that code section expressly “allows the court ... the widest discretion to choose a parenting plan that is in the best interest of the child.” (§ 3040, subd. (b).) A review of the entirety of the record—independently summarized in detail above—demonstrates that James had a genuine relationship with minor from the time of her birth, that he acted as the de facto father of the seven-year-old minor for a substantial portion of her life, and that he cared for her almost every weekend from the time minor was age three to the time Julie moved to Oklahoma in 2005. From these facts, and many others summarized above, the trial court could have reasonably concluded the grant of guardianship to James advanced the best interest of the minor. The trial court did not abuse its discretion.
III.
DID THE TRIAL COURT ABUSE ITS DISCRETION BY ACCEPTING MOTHER’S NOMINATION OF A GUARDIAN?
Appellants further contend the trial court abused its discretion by accepting and approving Julie’s nomination of James as minor’s guardian.
Both sides acknowledge Julie nominated James as minor’s guardian. Appellants submit:
“[I]t is also an undisputed fact that the judgment of JULIE ... as it pertains to [minor] has been sorely lacking throughout [minor]’S life ....
“Commissioner Vega heard the testimony regarding the poor judgment of [Julie] and ruled that she was, indeed, a detriment to [minor]. Yet, Commissioner Vega also chose to follow the recommendations of [Julie] and to accept her Nomination of JAMES [H.] as Guardian of [minor].
“Appellants ... contend that the trial court placed undue weight in accepting the Nomination of JAMES [H.] as Guardian for [minor] – especially in light of the poor judgment and reasoning that [Julie] has demonstrated as it regards [minor].”
Section 3043 provides: “In determining the person or persons to whom custody should be granted under paragraph (2) or (3) of subdivision (a) of Section 3040, the court shall consider and give due weight to the nomination of a guardian of the person of the child by a parent under Article 1 (commencing with Section 1500) of Chapter 1 of Part 2 of Division 4 of the Probate Code.” Here, Commissioner Vega briefly stated in his ruling: “Her [minor’s] mother has consented to one of the petitions, [James’].” This simple declarative sentence does not suggest or establish that the trial court placed undue weight on Julie’s consent to James’s proposed guardianship. Appellants’ contention must be rejected.
IV.
DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO COMPLY WITH SECTION 3048, SUBDIVISION (A) IN AWARDING GUARDIANSHIP TO RESPONDENT?
Section 3048 states in relevant part:
“(a) Notwithstanding any other provision of law, in any proceeding to determine child custody or visitation with a child, every custody or visitation order shall contain all of the following:
“(1) The basis for the court’s exercise of jurisdiction.
“(2) The manner in which notice and opportunity to be heard were given.
“(3) A clear description of the custody and visitation rights of each party.
“(4) A provision stating that a violation of the order may subject the party in violation to civil or criminal penalties, or both.
“(5) Identification of the country of habitual residence of the child or children.” (Italics added.)
For purposes of the Family Code, the term “shall” is mandatory and the term “may” is permissive. (§ 12.)
Appellants contend the trial court abused its discretion by failing to comply with section 3048, subdivision (a)(3), (4), (5) in awarding guardianship to James.
Appellants more specifically argue:
“The order issued by Commissioner Vega in awarding Guardianship of [minor] to [James] was not in compliance with Family Code section 3048(a) in that said Order failed to address the following:
“‘(3) A clear description of the custody and visitation rights of each party.
“(4) A provision stating that a violation of the order may subject the party in violation to civil or criminal penalties, or both.
“(5) Identification of the country of habitual residence of the child or children.’
“By failing to address the custody and visitation rights of each party, the trial court failed to protect [minor] by ensuring that [Julie] would be required to submit to conditions prior to visitation with [minor], such as drug testing, supervised visitation, conduction of visitation within the State of California, etc.. Additionally, the trial court failed to enforce the best interests of [minor] in its failure to consider a visitation plan and/or schedule with the [appellants].
“By failing to include a provision advising of civil and/or criminal penalties for violation of its Order, the trial court failed to protect [minor] by ensuring that [James] would be compliant with the Orders of the trial court. Given [James’] testimony at trial that he did not listen to anyone and that he makes his own decisions, Appellants believe that this omission is particularly troubling for [minor].
“By failing to indicate the country of habitual residence of [minor], the trial court has, in effect, given [James] its tacit approval to move [minor] out of the United States of America and far from the jurisdiction of the trial court if he decides to do so.”
In the instant case, the trial court’s guardianship order, filed February 23, 2007, did not address the items specified in Family Code section 3048, subdivision (a)(3), (4), and (5). Given the mandatory nature of these provisions, the matter must be remanded to the trial court for the sole purpose of enabling the trial court to take such measures as necessary and appropriate to achieve compliance with Family Code section 3048, subdivision (a)(3), (4), (5).
V.
DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO APPOINT COUNSEL ON MINOR’S BEHALF?
Appellants contend the trial court abused its discretion by failing to appoint counsel on behalf of minor.
Section 7861 states:
“The court shall consider whether the interests of the child require the appointment of counsel. If the court finds that the interests of the child require representation by counsel, the court shall appoint counsel to represent the child, whether or not the child is able to afford counsel. The child shall not be present in court unless the child so requests or the court so orders.”
While the ultimate decision whether to appoint counsel is certainly in the discretion of the trial court, section 7861 makes clear that the court has a non discretionary duty to at least consider the appointment. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 171.) The error of failing to appoint or consider appointing independent counsel is not necessarily prejudicial, however, and requires reversal only in case of a miscarriage of justice. (In re Richard E. (1978) 21 Cal.3d 349, 355; In re Mario C. (1990) 226 Cal.App.3d 599, 606; In re Sarah H. (1980) 106 Cal.App.3d 326, 330; In re Jacqueline H. (1979) 94 Cal.App.3d 808, 814-815.) A miscarriage of justice occurs when it is reasonably probable the trier of fact would have reached a result more favorable to the appellant absent the error. (See In re Jacqueline H., supra, 94 Cal.App.3d at pp. 814-815.) We may consider the issue though it is raised for the first time on appeal. (See Neumann v. Melgar, supra, 121 Cal.App.4th at pp. 163-164.)
Nothing in the appellate record indicates that the court ever considered appointing independent counsel for the minor. Nevertheless, the omission did not result in a miscarriage of justice. In view of the detailed factual scenario which we have independently set forth above, it is not reasonably probable that Commissioner Vega would have reached a result more favorable to appellants had minor been represented by counsel during the guardianship proceedings.
VI.
DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO GRANT A STAY OF EXECUTION OF ITS GUARDIANSHIP RULING PENDING APPEAL?
Appellants contend the trial court abused its discretion by denying their January 22, 2007 motion to stay execution of the December 22, 2006 ruling regarding guardianship pending appeal and for alternative relief to award a split visitation award pending appeal.
They specifically argue:
“Appellants ... were Guardians and de facto parents of [minor] from January 31, 2006 through February 9, 2007 (the date that Commissioner Vega ordered [minor] to be handed over to Respondent JAMES [H.]). The trial court denied Appellants any visitation with [minor] without explanation, other than to state that the trial court found ‘no basis’ in their request.
“While it is clear that the trial courts have wide discretion in child custody and child visitation orders, it is also clear that the trial courts must maintain the best interests of the minor child and must operate within prescribed guidelines as established by the California courts and the California legislature. In failing to address the best interests of [minor] ... the trial court abused its discretion and demonstrated reversible error when it refused to establish visitation between [minor] and the ERBERICHs….”
In view of our holding in issue IV above, we need not address this issue as the matter must be remanded for further proceedings to ensure compliance with the mandatory provisions of section 3048, subdivision (a)(3) (describing the custody and visitation rights of each party), (a)(4) (the effect of violating court orders), and (a)(5) (identification of the country of habitual residence of the minor).
DISPOSITION
The judgment (order appointing guardian of minor filed February 23, 2007) is affirmed in all respects provided, however, that the matter is remanded to the trial court for the sole purpose of enabling the trial court to take such measures as necessary and appropriate to achieve compliance with Family Code section 3048, subdivision (a)(3), (4), (5). The parties shall bear their own costs on appeal.
WE CONCUR: WISEMAN, J., KANE, J.