Opinion
G052801
12-15-2017
Guardianship of R.K. et al., Minors. A.K., Objector and Appellant, v. R.P. et al., Petitioners and Respondents.
Law Office of Daniel W. Rinaldelli and Daniel W. Rinaldelli for Objector and Appellant. Law Office of Leslie Ellen Shear, Leslie Ellen Shear and Julia C. Shear Kushner for Petitioners and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00791299) OPINION Appeal from an order of the Superior Court of Orange County, David L. Belz, Judge. Affirmed. Law Office of Daniel W. Rinaldelli and Daniel W. Rinaldelli for Objector and Appellant. Law Office of Leslie Ellen Shear, Leslie Ellen Shear and Julia C. Shear Kushner for Petitioners and Respondents.
* * *
A.K. (father) appeals from a probate court order granting a petition for guardianship and appointing respondents R.P. (stepfather) and M.P. (maternal grandmother or grandmother) as guardians over his minor children, R.K.1 (son) and R.K.2 (daughter). Son and daughter were living with stepfather, maternal grandmother, and S.K. (mother) when mother died of leukemia. The court granted the petition under Family Code section 3041, finding it would be detrimental to place the children in father's custody and the best interest of the children required nonparental custody.
All further statutory references are to the Family Code unless otherwise stated.
Father appeals raising several overlapping contentions we have consolidated into two basic attacks. First, an attack on the court's exercise of discretion in awarding custody to stepfather and grandmother, which includes the court's determination stepfather and grandmother qualified as de facto parents. Second, an attack on the constitutionality of the court's order as applied. Recounting two childhood classics — Marjorie Williams's The Velveteen Rabbit or How Toys Become Real and Dr. Seuss's Horton Hatches the Egg — stepfather and grandmother urge us to affirm, because nurture and commitment, not necessarily biology, make families real, and responsibility and care fit the core definition of parenthood and family. We agree. Father has not demonstrated error. Accordingly, we affirm.
FACTS
We draw most of the underlying facts from the trial court's 13-page decision.
Father does not raise a substantial evidence challenge.
Mother and father were married for approximately 10 years and had two children, son (born June 2004 now age 13) and daughter (born September 2001 now age 16). During their marriage they lived in Fontana, California. In 2007, mother and father separated, and a judgment of dissolution was entered in January 2008. The judgment provided for joint legal custody of the children with sole physical custody to mother. The visitation schedule called for alternate weekends for father from Friday at 7:00 p.m. to Sunday at 7:00 p.m. Father was also given a holiday schedule. Father was ordered to pay child support of $240 per month.
Mother and stepfather were married in December 2008. Prior to the wedding, mother, son, and daughter moved into stepfather's home located in Fullerton, California. In 2011, mother gave birth to another son. The family lived in the Fullerton home until mother's death. Mother and stepfather shared in the parenting responsibilities for son and daughter.
In July 2014, mother was diagnosed with leukemia, and her treatment required extended hospitalization. During this time, stepfather and grandmother shared in caring for son and daughter and household duties when mother was unable to do so. Eventually grandmother moved into the family home to provide additional support.
Approximately one month before mother died, stepfather called father to inform him mother would not survive. Two days before mother's death father visited mother in the hospital for the last time. On that day he informed son and daughter they would be coming to live with him in Fontana when mother died.
Mother died on May 21, 2015. On June 3, 2015, stepfather and grandmother filed a petition for appointment of guardianship over the person of son and daughter. They attached to the petition a handwritten "last wish and will" signed by mother stating she wished for the children to be left with stepfather "to be raised and cared for now and forever."
Mother's memorial service was held on June 10, 2015. On that day, over the children's objection, father removed the children from the Fullerton home and took them to reside with him in Fontana. There, son and daughter shared a bedroom in father's two-bedroom home.
At the hearing on the guardianship petition, the court heard evidence from father, stepfather, grandmother, daughter, son's fifth grade teacher, and the probate court services investigator. The court admitted into evidence a guardianship investigation report prepared by probate court services. The report found the proposed guardians were suitable to be appointed as the children's guardians. The court also admitted into evidence an investigation report under Probate Code section 1513, subdivision (b), prepared by the Orange County Department of Social Services Agency (SSA). The summary states father had been caring for the children since mother's death, their basic needs were being met, and father posed no risk to the children. The report also stated both children were asking to stay in Fullerton with stepfather and grandmother. The report concluded the children appeared to be more closely bonded with stepfather who was their "psychological father" for the past eight years. The report stated father told the investigator stepfather and grandmother "can see the kids any time they want as long as I'm around." Father testified he would allow visits "when there are no activities we have planned then they can spend a weekend with them on occasion."
Father did not include the SSA report in the record on appeal.
Between the memorial service on June 10, 2015 and the August guardianship hearing, the children saw stepfather and grandmother on four occasions. Both children expressed their "strong desire" to live in Fullerton with stepfather, grandmother, and their younger brother (now age 6), with whom they had bonded. Daughter wrote a letter expressing her concerns and reasons for wanting to live in Fullerton and told the SSA investigator she wanted to live in Fullerton and visit father every other weekend. She said she felt awkward with father sometimes and was not comfortable talking to him.
The court filed its decision on August 17, 2015 (initial decision). The court granted stepfather's and grandmother's petition, and on August 19, 2015, issued letters of guardianship and entered a corresponding order appointing the guardians. Father filed written objections to the court's initial decision. On September 11, 2015, the court entered a minute order overruling father's objections and denying father's request for a new trial. The court concurrently filed a new version of its decision on September 11, 2015 (final decision). The final decision is nearly identical to the initial decision, differing principally in the court's recitation of the procedural history post-August 17, 2015. The clerk served "Notice of Entry of Judgment/Decision and Order After Hearing" on September 11, 2015.
Father did not include his objections in the record on appeal.
On August 3, 2017 we issued an order notifying the parties we intended to augment the record on appeal to include the September 11, 2015 minute order and inviting opposition. None was received. Therefore, on its own motion the court augments the record on appeal to include the trial court's minute order dated September 11, 2015. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
In its final decision, the court granted the petition and appointed stepfather and grandmother as guardians of the persons of son and daughter, finding "[t]he evidence in this case is clear and convincing." The court found it would be detrimental to the children to change custody to make father the primary custodial parent, it was in the best interest of son and daughter that the guardianship be established, and stepfather and grandmother were suitable and qualified to serve as guardians.
The court found stepfather had, for a substantial period, acted in the capacity of a parent to son and daughter by providing for their psychological needs for care and affection, by providing them with a stable environment, by providing them shelter, by tending to daily activities of living such as cooking for them, helping them with homework, traveling with them, participating in recreational activities with them, and by providing them emotional support. The court also found during mother's illness, stepfather and grandmother worked together to provide in their own way, for the personal and emotional needs of the children. The court found grandmother had provided emotional and physical support for the children from the time of mother and father's separation.
The court found stepfather and grandmother "established a bonded, supportive, and loving relationship" with the children and had provided a permanent, safe, stable, and loving environment for the children for a substantial period of time and had "established a long term relationship with the minors such as to create a rebuttable presumption that changing the custody to make [father] the primary custodial parent at this time would be detrimental" to son and daughter.
The court found daughter was turning 14 years old in September 2015 and appeared from her testimony to be mature enough to meet the standard in section 3042. The court also found that since the memorial service, father had limited the contact and visits of stepfather and grandmother. The Department of Child Support Services (DCSS) had a claim against father for back child support and had issued a wage assignment, but the court found insufficient evidence as to the exact amount of child support arrears. The court found the testimony of stepfather and grandmother credible but found the testimony of father to be "less credible."
Section 3042, subdivision (a), provides, "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."
On these facts, the court found father did not rebut the presumption established under section 3041, subdivision (d).
Section 3041, subdivision (d), states: "[I]f the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c) [a de facto parent], this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary."
The court ordered a visitation schedule for father giving him visits with son and daughter on the first, third, and fourth weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m.; the same holiday schedule outlined in the dissolution judgment; four nonconsecutive weeks during summer; and unlimited phone calls.
On November 9, 2015, father appealed from "the findings, decisions and order . . . entered on or about September 11, 2015," i.e., the final decision.
DISCUSSION
We Deem Father's Appeal to be from an Appealable Order
Stepfather and grandmother contend father appealed from a nonappealable order. Father's notice of appeal specifies he appeals from the final decision entered September 11, 2015, not the interim decision entered August 17, 2015 or the order granting letters of guardianship entered August 19, 2015.
In guardianship, conservatorship and other protective proceedings, an appeal may be taken from "the grant or refusal to grant" any of the following orders: "Granting or revoking letters of guardianship or conservatorship except letters of temporary guardianship or temporary conservatorship." (Prob. Code, § 1301, subd. (a).) Strictly read, it appears under Probate Code section 1301, subdivision (a), the appealable order is the August 17, 2015 interim decision granting the petition that eventually resulted in the issuance of letters of guardianship.
But it is not that simple. The interim decision entered August 17, 2015 references California Rules of Court rule 3.1590 dealing with statements of decision, implying the court considered the interim decision a statement of decision subject to rule 3.1590. Indeed the court's final decision recites it issued its "Statement of Decision" on August 17, 2015, even though the court's interim decision was not labelled in that way. And the final decision makes no reference to rule 3.1590. Clearly father believed the interim decision was a statement of decision, because he timely filed objections on August 27, 2015 within 15 days of the court's interim decision as contemplated by rule 3.1590(g). Stepfather and grandmother filed a reply a few days later. It was only after the court reviewed the objections and reply that it overruled father's objections and issued its final decision. And only then, on September 11, 2015, did the court clerk serve notice of entry of judgment.
All further rule references are to the California Rules of Court.
A review of father's briefing leaves no doubt he appeals from the court's decision to grant guardianship over son and daughter. The court's reasoning and rulings are spelled out in detail in the interim decision and final decision, which are nearly identical. We construe father's notice of appeal from the final decision liberally in favor of its sufficiency. (People v. Earls (1992) 10 Cal.App.4th 184, 191.)
Father's Contentions
Father advances four contentions: (1) "granting guardianship to stepfather and maternal grandmother over father's objection constituted reversible error and abuse of discretion by the trial court in violation of the U.S. Constitution's preservation of fundamental rights of parentage"; (2) the "trial court committed reversible error in applying 'de facto' parent status to stepfather and maternal grandmother in guardianship proceedings"; (3) "as a matter of law the trial court's finding that [stepfather] and [grandmother] had a substantial relationship with the minor children does not qualify them for 'de facto' parent status"; and (4) "section 3103 is the only applicable statutory scheme applicable to step-father and maternal grandmother and, by its own legislative limitations, may only afford visitation rights." As to father's third contention, he fails to provide a single legal citation in the portion of his brief addressing the contention, so the issue is waived. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived."].)
Father's other arguments overlap and are somewhat difficult to follow. We determine he has not shown the trial court abused its discretion or that he has been deprived of any constitutional right.
The Court did not Abuse its Discretion in Granting the Guardianship Petition
The issue of custody is one committed to the discretion of the trial court. (In re B.G. (1974) 11 Cal.3d 679, 699 (B.G.) [applying former Civ. Code, § 4600, subd. (c), now § 3041].) "'The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.' [Citation.] Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.'" (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; see Guardianship of Vaughan (2012) 207 Cal.App.4th 1055, 1067 (Vaughn) [probate guardianship orders reviewed under deferential "clearly erroneous standard of review"].)
A court may appoint a guardian of the person of a minor upon hearing a guardianship petition "if it appears necessary or convenient." (Prob. Code, § 1514, subd. (a).) "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." (Id., subd. (b); see Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 61 (Zachary H.).)
Upon mother's death, father immediately became entitled to sole custody of his children. (§ 3010, subd. (b) ["If one parent is dead, . . . the other parent is entitled to custody of the child."]; see Guardianship of Donaldson (1986) 178 Cal.App.3d 477, 486.) However, an award of custody to a nonparent over a parent's objection is appropriate in some circumstances.
Section 3040, subdivision (a), made applicable to guardianship proceedings under Probate Code section 1514, subdivision (b), provides in part, "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 . . . 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."
Section 3011 lists factors for determining best interest of the child.
Section 3020 declares, inter alia, 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.
In this case, the court's orders were made under section 3041, also made applicable to guardianship proceedings under Probate Code section 1514, subdivision (b). "Section 3041 provides that before granting custody of a child to a nonparent over the objection of a parent, the court must find that custody to a parent would be detrimental to the child and that custody to the nonparent is in the best interest of the child. [Citation.] The finding of detriment must be supported by clear and convincing evidence, but it does not require a showing of parental unfitness. [Citation.] Section 3041 further provides that if a preponderance of the evidence shows a nonparent has assumed the parental role for a substantial period of time by proving a stable home where the child's physical and emotional needs are met (i.e., a de facto parent), this establishes the required showing that nonparental custody is in the best interest of the child and that parental custody would be detrimental. [Citation.] However, a parent may refute the evidence supporting custody with a de facto parent by showing by a preponderance of the evidence that there would be no detriment from parental custody and that nonparental custody is not required to serve the best interest of the child." (H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 1137 (H.S.); see Vaughan, supra, 207 Cal.App.4th at p. 1059.)
"Thus, under section 3041, subdivision (d), a showing of de facto parent status creates a rebuttable presumption that it would be detrimental to place the child in the custody of a parent and the best interest of the child requires nonparental custody." (H.S., supra, 173 Cal.App.4th at pp. 1137-1138.) "[S]ection 3041, subdivision (d) reflects a legislative assessment that '"continuity and stability in a child's life most certainly count for something"' and 'in the absence of proof to the contrary, removing a child from what has been a stable, continuous, and successful placement is detrimental to the child.'" (Id. at p. 1138.) This is known as "the 'stable placement' rebuttable presumption . . . ." (Vaughan, supra, 207 Cal.App.4th at p. 1059.)
We therefore begin by examining the bases for the court's conclusions stepfather and grandmother acted as de facto parents and established the stable placement rebuttable presumption and that father failed to rebut the presumption. The court never expressly used the words "de facto parent" or "stable placement rebuttable presumption" as case law does. (See H.S., supra, 173 Cal.App.4th at pp. 1137 [de facto parent]; Vaughn, supra, 207 Cal.App.4th at p. 1059 [stable placement presumption].) But the court's conclusions are consistent with case law applying section 3041. The court found by clear and convincing evidence stepfather and grandmother established a long-term relationship with the children. The court found this showing triggered a rebuttable presumption under section 3041, subdivision (d) that removing the children from stepfather and grandmother would be detrimental to them, the equivalent of a finding of de facto parent status. (See H.S., supra, 173 Cal.App.4th at pp. 1137-1138.)
The court did not conform its factual findings to the legal basis for its conclusions. Nevertheless, we find support for the outcome by sifting through the final decision's various sections and piecing together factual findings related to the legal conclusions. The final decision would have been clearer if it had tracked the language of section 3041.
Even without the rebuttable presumption, the court made multiple express findings of detriment. We count six findings regarding detriment: (1) stepfather and grandmother had established a long-term relationship with the children such as to create a rebuttable presumption that changing custody to make father the primary custodial parent would be detrimental to the children; (2) the evidence failed to show father's relationship was sufficient to overcome the detriment to the children if the petition was not granted; (3) given the bonded relationship stepfather and grandmother had with the children, "an occasional contact would be detrimental to them"; (4) father had not presented evidence to support a finding his relationship from the time of the judgment of dissolution was strong enough to show there would not be detriment to the children if the court denied the petition; and (6) the evidence was clear and convincing that stepfather and grandmother had provided a long-term, strong, stable and bonded relationship with the children and to deny the petition would be detrimental to them. The court also made an express finding it was in the best interest of son and daughter that the guardianship be established.
Father has not established the court's belt and suspenders approach was an abuse of discretion. The court was governed by the legislative finding it is in the best interest of children to be raised in a permanent, stable, and loving environment. (Prob. Code, § 1610, subd. (a).) "'In 2002, the Legislature added subdivisions to section 3041 emphasizing the importance of a stable home environment for the child,'" and now "'"'detriment to the child' includes the harm of removal from a stable placement . . . ."'" (Vaughan, supra, 207 Cal.App.4th at p. 1070; § 3041, subd. (c).) "Whether de facto parenthood exists is not based on the intentions of the biological parent or the manner in which the de facto parent gained custody. Rather, it is based on the quality of the relationship between the child and the de facto parent." (Vaughan, supra, 207 Cal.App.4th at p.1072.)
Here, son and daughter were in a stable placement with mother and stepfather from 2008 to mother's death in 2015. During this time, mother and stepfather shared the day-to-day parenting responsibilities for son and daughter, such as cooking, helping them with homework, traveling, participating in recreational activities with them, and providing emotional support. Stepfather served as the "psychological parent" for both children and appeared to the SSA investigator more bonded to the children. Grandmother became part of the live-in family unit when she moved into the family home in 2014. Grandmother assisted with the day-to-day responsibility for son and daughter as mother's health deteriorated. Even before she moved into the family home, grandmother provided emotional and physical support for the children following mother's and father's separation. The evidence, as reflected in testimony, the guardianship investigation report, and the SSA investigation report, thus supports the court's conclusion stepfather and grandmother had established a bonded, supportive, and loving relationship and had provided a permanent, safe, stable, and loving environment for the children for a substantial period of time. The evidence establishes son and daughter occupied a stable placement with stepfather and grandmother and the stable placement rebuttable presumption was properly applied. (Vaughan, supra, 207 Cal.App.4th at p. 1059.)
The court also gave proper consideration to daughter's expressed preference to live with stepfather, grandmother, and her younger brother. (§ 3042, subd. (a).) The court also considered the importance of the sibling relationship son and daughter developed with their younger brother. There is a strong policy in California that sibling bonds should be preserved whenever possible. (In re Marriage of Heath (2004) 122 Cal.App.4th 444, 449.)
Finally, the evidence was undisputed father was behind in child support payments prior to mother's death, requiring the intervention of DCSS and garnishment of father's wages. "A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life." (§ 4053, subd. (a).) "Both parents are mutually responsible for the support of their children." (Id., subd. (b).) "Each parent should pay for the support of the children according to his or her ability." (Id., subd. (d).) In establishing support guidelines, the interests of children are the state's top priority. (Id., subd. (e).) Although not determinative, the court found it a contradiction for father to say giving him custody of the children was in their best interest when he had not satisfied his first and principal obligation to provide for them financially. We agree this was another factor the court properly considered and that father's reluctance, unwillingness or inability to pay the court-ordered $240 per month in support for two children did not assist father in rebutting the presumption.
At oral argument, father's counsel asserted there was no evidence father was delinquent in child support payments. Not so. Father testified DCSS closed his case when he became the children's custodial parent, but before that DCSS was collecting the arrears. He admitted DCSS claimed he owed $20,000. He also testified mother told him before she filed for child support through DCSS that she believed he owed $4,000 to $5,000.
Father argues "section 3103 is the only statutory scheme applicable to step-father and maternal grandmother and, by its own[] legislative limitations, may only afford visitation rights." Father seems to argue section 3101, which provides authority for granting visitation rights to a stepparent, and sections 3103 and 3104, which provide authority for granting visitation rights to a grandparent, contain the only bases for giving stepfather or grandmother any right to see son and daughter. Father's undeveloped argument lacks merit, and he is incorrect. He offers no authority suggesting when a stepparent or grandparent is the petitioning party seeking guardianship under section 3041, which involves a custody determination, section 3041 is ignored in favor of provisions concerning visitation outside the context of a custody determination. In guardianship proceedings, section 3041 governs, not sections 3101, 3103, and 3104. (Prob. Code, § 1514, subd. (b); Zachary H., supra, 73 Cal.App.4th at p. 61.)
Ordinarily stepparents have no legal right to custody, and the court has discretion to grant visitation against the parents' wishes only in the most unusual and extreme cases. (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 305, 310.) Section 3103 permits the court in a marriage dissolution action to consider grandparent visitation when fashioning custody and visitation orders. (In re Marriage of Harris (2004) 34 Cal.4th 210, 222.) Section 3104 permits a grandparent to petition for visitation if the parents are not married and thus comes into play once a judgment dissolving the marriage and determining custody of the child has been entered. (Ibid.)
Father failed to provide record cites to his factual arguments in violation of rule 8.204(1)(C). It is not our task to search the record for evidence that supports the party's factual statements, and we may disregard statements not supported by proper citation. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1310, fn. 3; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1.)
We perceive no error and agree father failed to rebut the presumption in section 3041, subdivision (d). Father demonstrated stark insensitivity to the children's best interest, lack of empathy, and lack of emotional awareness in telling the children they were going to come live with him as their mother lay dying, and in abruptly removing them from the stable placement they enjoyed for years over their objection on the day of their mother's memorial service. From that day until the guardianship hearing, a period of about two months, father allowed the children only four visits with stepfather and grandmother. The court did not abuse its discretion in granting the guardianship petition by determining custody to father would be detrimental to son and daughter and custody to stepfather and grandmother would serve their best interest. (§ 3041, subd. (a).)
Section 3041 is Not Unconstitutional as Applied to Father
Father contends section 3041 is unconstitutional as applied to him, because it shifts the burden of proving detriment to him by giving de facto parent status to stepfather and grandmother and ignoring his natural relationship with son and daughter. Father also complains any finding affecting a parent's fundamental right to custody of their children must be "supported only by a clear and convincing finding of necessity." We disagree section 3041 is unconstitutional as applied.
As explained in H.S., a case father failed to address in his brief or at oral argument, "[t]wo competing rights are at issue when a trial court must decide custody issues in a proceeding involving a parent and a de facto parent. Parents have a fundamental right to custody of their children." [Citation.] Consistent with this right, the courts apply a 'parental preference doctrine' which provides that parents generally have the right to custody of their children over a third party. [Citation.] However, this right is not absolute and must be balanced against a child's 'fundamental right . . . to "have a placement that is stable [and] permanent."'" (H.S., supra, 173 Cal.App.4th at p. 1139.)
In H.S., the father challenged a family court order awarding permanent sole physical and legal custody of his daughter to the father's brother and sister-in-law. (H.S., supra, 173 Cal.App.4th at p. 1136.) The father argued section 3041 was unconstitutional because it allowed nonparental custody based on a preponderance of the evidence standard of proof rather than a clear and convincing standard of proof without requiring a finding of parental unfitness. (H.S., at p. 1138.) The court noted one component of procedural due process is the standard of proof, which must satisfy "'"the constitutional minimum of 'fundamental fairness'"'" (Id. at p. 1139.) However, the court disagreed section 3041 was unconstitutional because it allows proof of de facto parent status by a preponderance of the evidence. The court stated, "Although the availability of the presumption arising from de facto parent status relieves the de facto parent of the burden of establishing the detriment/best interest requirements, the presumption is rebuttable by the parent under the lowest preponderance of the evidence standard of proof. Thus, the risk of error is essentially shared equally between the de facto parent (who is afforded the benefit of the presumption after showing de facto status) and the parent (who can rebut the presumption under the lowest standard). Through this equalization of the burdens in the case of de facto parents, the Legislature has recognized the two important, and competing, interests of parental rights and child stability. This balancing of the respective interests comports with due process." (H.S., at pp. 1140-1141, italics added.)
Even if father had established the preponderance of the evidence standard as outlined in section 3041 is unconstitutional, which he did not, in this case the point would be moot because the court's findings were made by clear and convincing evidence. Father has not established the trial court's process violated the fundamental fairness component of procedural due process.
Father's argument also rests in part on his contention that in the absence of a finding of juvenile court dependency under Welfare and Institutions Code section 300, the probate court cannot rely on the de facto parent provisions of section 3041, subdivision (c). Father contends there is a contradiction between section 3041, subdivision (c) and rule 5.502, and by ignoring the contradiction, the court "changed the statutory scheme under which California law seeks to protect fundamental [United States] Constitutional parental rights." Father cites not a single case finding unconstitutional a court's application of section 3041. His argument reflects a fundamental misunderstanding of the differences between juvenile dependency and guardianship proceedings.
Rule 5.502(10) defines "De facto parent" as "a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period."
Thus we agree with stepfather and grandmother the argument is frivolous. There is no contradiction between section 3041 and rule 5.502, and in any case, rule 5.502 is inapplicable to this case. The rule is found within division 3 of the Family and Juvenile Rules. It applies solely to "every action and proceeding to which the juvenile court law [citation] applies . . . ." (Rule 5.501(a), italics added.) The court did not apply rule 5.502 or juvenile court law, because this is not a juvenile court proceeding.
According to our Supreme Court, "After the passage of the juvenile dependency statutes, probate guardianships have continued to provide an alternative placement for children who cannot safely remain with their parents. [Citation.] The difference between probate guardianships and dependency proceedings are significant. [Citation.] Probate guardianships are not initiated by the state, but by private parties, typically family members. They do not entail proof of specific statutory grounds demonstrating substantial risk of harm to the child, as is required in dependency proceedings. [Citations.] Unlike dependency cases, they are not regularly supervised by the court and a social services agency. No governmental entity is a party to the proceedings. It is the family members and the guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited, or the guardianship continued, or an adoption sought under [Probate Code] section 1516.5." (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1122.)
Contrary to father's contention, de facto parent findings are not limited to juvenile court proceedings in which a dependency petition has been filed. For example, the Uniform Parentage Act (§ 7600 et seq.; UPA) provides the procedural vehicle for unmarried parents to establish their rights vis-à-vis each other and their children. (Erika K. v. Brett D. (2008) 161 Cal.App.4th 1259, 1267.) Within the UPA, section 7612, subdivision (c) provides, "In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled 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. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage." (Italics added.) The italicized language, quoted ante, is nearly identical to that in section 3041, subdivision (c).
The instant case arose not from juvenile court or UPA proceedings but from probate court proceedings initiated by a petition for guardianship by stepfather and grandmother. As previously stated, Probate Code section 1514, subdivision (b) makes section 3040, et seq. applicable when the court appoints a guardian of the person. For decades courts have applied section 3041 in establishing guardianships. (See Vaughan, supra, 207 Cal.App.4th at p. 1059 ["'stable placement' rebuttable presumption" under section 3041]; Guardianship of L.V. (2006) 136 Cal.App.4th 481, 495 [parents who relinquished day-to-day parenting of minor not entitled to constitutional protection afforded parents who are acting in that role]; Zachary H., supra, 73 Cal.App.4th at p. 66 [harm from being removed from stable placement can support detriment prong of section 3041]; Guardianship of Stephen G. (1995) 40 Cal.App.4th 1418, 1432 [trial court may not grant petition for guardianship over the objection of natural parent in absence of clear and convincing evidence that award of custody to parent would be detrimental and an award to prospective guardian is in child's best interest].) Father fails to address Probate Code section 1514 or cases applying section 3041 to facts analogous to the instant case.
A guardianship order is based upon the recognition children have their own distinct interests that are deserving of protection. "'[A]s a matter of simple common sense, the rights of children in their family relationships are at least as fundamental and compelling as those of their parents. If anything, children's familial rights are more compelling than adults', because children's interests in family relationships comprise more than the emotional and social interests which adults have in family life; children's interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each child's mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring. [Citation.] [¶] Cases which hold that deference is to be accorded to parental rights do so in part on the assumption that children's needs generally are best met by helping parents achieve their interests. [Citations.] In some situations, however, children's and parents' rights conflict, and in these situations, the legal system traditionally protects the child.'" (Zachary H., supra, 73 Cal.App.4th at p. 64.)
Hence, where the interests of a child conflict with those of a parent, the child's interests must prevail. "[C]hildren are not merely chattels belonging to their parents, but rather have fundamental interests of their own. [Citation.] Such fundamental interests are of constitutional dimension." (In re Bridget R. (1996) 41 Cal.App.4th 1483, 1490, superseded by statute on another ground as stated in In re Santos Y. (2001) 92 Cal.App.4th 1274, 1311-1312.) The trial court did not unconstitutionally elevate son's and daughter's interests over father's interest. Father has not demonstrated the order establishing guardianship is unconstitutional as applied.
DISPOSITION
The order is affirmed. Respondents to recover their costs on appeal.
IKOLA, J. WE CONCUR: O'LEARY, P. J. MOORE, J.