Opinion
G061204
07-12-2023
Guardianship of J.F., a Minor. v. S.O., Objector and Respondent. A.D. et al., Petitioners and Appellants,
Law Office of Alan S. Yockelson and Alan S. Yockelson for Petitioners and Appellants. S.O., in pro. per., for Objector, Petitioner, and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 30-2020-01123930 Edward W. Hall, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Office of Alan S. Yockelson and Alan S. Yockelson for Petitioners and Appellants.
S.O., in pro. per., for Objector, Petitioner, and Respondent.
OPINION
GOETHALS, J.
J.F. is a seven-year-old boy who has endured significant hardship, but is surrounded by family members who love and care about him. After J.F.'s mother died of a drug overdose and his father's continued struggles with drug abuse impaired his ability to care for then four-year-old J.F., his paternal grandmother and step-grandfather (the Darians) obtained letters of temporary guardianship from the probate court and petitioned for permanent guardianship. However, due to concerns that the Darians were isolating J.F. and alienating him from his father and maternal relatives, J.F.'s maternal grandmother, Shannon, filed a counter-petition for guardianship.
We refer to the parties in the manner we believe most likely to promote clarity and preserve confidentiality. When referred to individually, the Darians are H. Darian, J.F.'s paternal grandmother, and A. Darian, his paternal step-grandfather. The maternal grandmother is referred to as Shannon. No disrespect is intended.
After lengthy and dynamic hearings, the probate court terminated the Darians' guardianship and appointed Shannon as J.F.'s new temporary guardian. When the permanent guardianship hearing concluded months later, the court issued letters of permanent guardianship to Shannon.
The Darians appeal, arguing the judgment must be reversed for two reasons: (1) three of the "four pillars" of the court's decision to appoint Shannon are unsupported by evidence introduced during the guardianship hearing and the evidence was otherwise insufficient to support the decision appointing Shannon as J.F.'s guardian; and (2) the court abused its discretion when it failed to grant their request for appointment of an expert to evaluate J.F. pursuant to Evidence Code section 730 (section 730).
We affirm. We are unpersuaded by the Darians' characterization of the role the challenged facts play in the court's statement of decision (SOD). Only one of the four "pillars" they cite-a statement made by A. Darian himself-played a key role in the court's analysis. The court's most significant factual "findings"-unchallenged by the Darians in this appeal-were "[J.F.] is loved by all his family members" and "[J.F.] needs the love and support of all his family members."
The most direct support for the court's decision to appoint Shannon as J.F.'s guardian was the Darians' own repeated statements in opposition to allowing J.F. any significant contact with his father, Shannon, or any other maternal relatives, and their insistence that even the prospect of such contact was traumatic for J.F. A. Darian persisted in those claims months after Shannon had taken over as J.F.'s temporary guardian, which has resulted in no apparent trauma; and in the face of substantial evidence that even J.F.'s initial in-person visit with Shannon-following nearly a year of separation in the wake of the Darians' temporary guardianship-had been a loving and joyous one.
The fact that A. Darian continued to make such assertions in the face of such evidence was significant to the court. Indeed, the court highlighted that point in a comment added to its SOD after the Darians again repeated their dire predictions as part of their objection to the court's initial statement. Given the court's finding that J.F. needed the love and support "of all of his family members," we affirm its decision to appoint Shannon as guardian, rather than the Darians.
We also reject the Darians' claim that the court abused its discretion by failing to grant their request for appointment of an expert to evaluate J.F. The Darians made no motion seeking such an appointment as required by the statute. Their "request" to do so was made near the end of a seven-page factual declaration filed by A. Darian a month after the court transferred temporary guardianship to Shannon and suggested that if the court was not persuaded by their factual claims, it should appoint an expert. The court had no obligation to accept that suggestion; it did not abuse its discretion in declining to do so.
This is the unusual case in our experience in which the trial court was asked to determine what placement was in the "best interest" of a minor without receiving mandatory input from the Social Services Agency (SSA). As a result, the parties were largely left to formulate their own strategies and marshal their own resources. We invite the Legislature to review this record with an eye to amending the statutory scheme which allowed such a proceeding with only limited input from SSA.
FACTS
This case began in January of 2020, when the Darians filed an emergency petition and were granted letters of temporary guardianship over J.F. Their filing followed an especially turbulent period beginning on November 23, 2019, when J.F.'s father (who, along with J.F. had been living with the Darians), took J.F. from their home. The Darians were concerned J.F.'s father was using drugs. J.F. and his father lived in various places for a period of weeks, before a former girlfriend of J.F.'s father brought J.F. back to the Darians on December 30.
On January 2, 2020, J.F.'s father came to the Darians' home with his own father and demanded they return J.F. to his custody. Law enforcement was summoned, but ultimately J.F.'s father left without his son. At the request of H. Darian, Shannon came to the Darians' home, along with her own father (J.F.'s great-grandfather), to help calm J.F. J.F.'s father later contacted Shannon and insisted on seeing his son. She agreed, and when J.F.'s father arrived with his own father (H. Darian's ex-husband), she allowed them to leave with J.F.
According to the Darians, Shannon did this even though she knew J.F.'s father was abusing drugs. Shannon denied that claim, stating she had not been aware J.F.'s father was abusing drugs; J.F. wanted to go with his father; she did not believe she had the right to keep the boy away from his father; and she did not believe J.F. would be in danger in the company of both his father and paternal grandfather.
On the day the Darians obtained their emergency order, Shannon dropped J.F. off at the school he had attended since 2016, as she often had, with no knowledge of their plan. After obtaining the guardianship order, the Darians picked up J.F. from his school and he never returned. J.F. later attended an online school, due to COVID.
J.F.'s father filed a written objection to the Darians' guardianship petition, but alternatively stated that if a guardianship were deemed necessary, he "nominated" the maternal grandparents, Shannon and her husband, or the maternal great-grandparents to serve as guardians. Shannon also objected to the Darians' petition. She related her concern that the Darians might be negatively influencing J.F, by telling him his father is '"bad"' and preventing him from having contact with his maternal family members.
J.F.'s father filed an ex parte application for an order allowing him to visit J.F., which the probate court denied without prejudice. The court ordered an investigation pursuant to Probate Code section 1513 and ordered SSA to file a report.
Probate Code section 1513, subdivision (a), requires that in cases where a guardianship is requested, an investigation must be completed by a court investigator, probation officer, or domestic relations investigator, and a report must be filed with the court. Subdivision (b) states that in cases where the proposed ward falls, or may fall within the confines of Welfare and Institutions Code section 300, the court may refer the matter to the local child welfare agency to conduct an investigation and prepare a report, which must be filed with the court. Subdivision (c) requires the court to read and consider any such reports before ruling in the guardianship proceeding, and provides that any person preparing such a report may be called as a witness and examined by any party to the proceeding.
The initial permanent guardianship proceeding addressed only the Darians' guardianship petition and thus focused on whether J.F.'s father was able to properly care for him, and whether the Darians qualified as proper guardians. On the first hearing day, counsel for the Darians asked the court "to consider and read the two investigation reports," both dated in July 2020. The Darians' counsel cited Probate Code section 1513, subdivision (c), for the proposition that the court should consider the reports.
On December 1, 2020, while the hearing on the Darians' petition was still underway, Shannon filed a competing petition to be named as J.F.'s guardian. Shannon alleged the Darians were emotionally abusing J.F. by lying to him about his father and maternal family members who have been active in his life "up to the date of the temporary guardianship was granted." She also alleged the Darians were "with[holding J.F.] from reunification with the father and the minor's maternal family members."
Shannon testified she had delayed in filing her own guardianship petition because she had been advised she was not allowed to do so until the Darians' petition was decided. When she later learned she could file her own petition, she did.
On December 10, 2020, during a session of the guardianship hearing, the probate court stated "[i]t would be the court's intention that [J.F.] should be allowed to have some visitation with the maternal side of the family." It ordered the parties to "work together to set up monitored visits with Shannon and [J.F.'s father] at the expense of Shannon ...."
A week later, the court entered a stipulated order allowing Shannon to have a two-hour monitored visit with J.F. on December 19, to which she could bring up to two other maternal family members. Additional visits were ordered to take place "at a date and time mutually agreed upon between the parties." Due to COVID concerns, the court specified visitation would take place at an outdoor location, such as a park, and all participants would remain masked and engage in social distancing.
When the visitation took place, at a park, it did not go well, which prompted an additional court hearing. At that hearing Shannon and A. Darian testified and provided their competing perspectives on what caused the visitation to go wrong. At the conclusion of that hearing, the court determined that due to COVID concerns, future visits should be conducted via Zoom.
The presentation of evidence in the initial phase of the hearing-regarding the Darians' guardianship petition-concluded in February 2021, and the parties made closing arguments. The court noted it had scheduled another date at which it was anticipating an update on SSA's section 1513, subdivision (b) report. The court remarked "hopefully the investigation can be completed by the next court date."
On March 9, 2021, the probate department filed a confidential report reflecting its conclusions about the proposed guardianship. In addition to summarizing the evidence, the investigator noted that J.F.'s father had reported concerns that J.F. was distracted by electronic devices during Zoom visits, and the investigator suggested he might want to raise the issue at the next hearing. J.F.'s father also reported to the investigator that J.F. had not been made available for either his or Shannon's most recent Zoom calls. The investigator commended J.F.'s father on his participation in drug court and other services, but stated she still had concerns regarding his history of substance abuse.
At a hearing on March 12, 2021, the court explained it wanted "an updated report so that the investigators could consider any additional information . . . which they appear to have done." The parties shared with the court their differing views of the Zoom visits, and whether J.F. was being made available to them as agreed. The court then appointed Cheryl Walsh to act as J.F.'s guardian ad litem (GAL) and requested that Walsh meet with J.F. and participate in the Zoom visitation. The court also ordered that the Zoom visits should include Shannon's father. The court ordered all parties to contact Angel Guardians to arrange and pay for an assessment of possible monitored in-person visitation.
Both Shannon and J.F.'s father complained at the hearing that J.F. was frequently distracted by an iPad or the television during the remote Zoom visits. A. Darian responded to those complaints by reading what he described as a "prepared statement." He concluded with a request that visitation continue in the virtual format.
On April 19, 2021, probate court services filed an initial investigation report concerning Shannon's guardianship petition. The investigator concluded "there appears to be multi-faceted family dynamics at play, which has perpetuated mistrust ...." However, "[d]espite the aforementioned, [Shannon] has been present in [J.F.]'s life since birth, and .... [i]t is apparent that [J.F.] has developed familial bonds with both paternal and maternal relatives." The investigator "strongly urge[d] all parties to set aside any differences and work together to provide [J.F.] a strong and united support system, and facilitate contact with members of both sides of the family." Although the investigator concluded "there appears to be no imminent concerns regarding the petitioner's suitability to act as guardian of the minor," she believed J.F.'s best interests would be "served by maintaining the status quo."
The Darians filed an objection to Shannon's guardianship petition; on April 30, 2021, the probate court held a hearing to discuss the petition, which was then pending in a different department. The GAL reported the Zoom visits with J.F. were not very successful and suggested that in-person visits be allowed with a monitor.
The court informed the parties it had concerns about visitation. While acknowledging "the Darians . . . are totally opposed to any type of visitation for a number of reasons," the court stated, "we can't lose sight of the fact that the most important person that everybody is concerned with here is [J.F.] and him moving forward in his life with relationships that he should have available to him."
The court then indicated that, although it had intended to rule on the Darians' guardianship petition that day, in light of Shannon's counter-petition, it would not do so: "And I can't say it any clearer, my concern right now is this visitation aspect, and that's been my concern for a while. That's an issue that needs to be resolved. So I'm not going to rule on [the Darians'] petition this afternoon."
The probate court then ordered an in-person visitation schedule of three days per week: Saturday, Sunday, and Tuesday, with the time subject to the availability of Angel Guardians monitors. The court then continued the matter for three weeks.
On May 13, 2021, A. Darian filed a declaration explaining that the monitored visitation ordered on April 30 did not occur for two reasons: first, because J.F. refused to visit, and second, because of "health safety concerns and the monitors' inability to give assurance that COVID-19 restrictions would be followed during the visits."
On May 17, 2021, J.F.'s father filed a petition to terminate the Darians' guardianship.
On June 17, 2021, the probate court held a remote hearing to address visitation with J.F.'s maternal relatives. The GAL reported that J.F. was attending therapy sessions, and while the therapist was unable to make visitation recommendations, the GAL recommended monitored visitation with the maternal family.
On August 12, 2021, the court ordered that Shannon and other named members of J.F.'s maternal family be allowed monitored visitation. The first visit, including Shannon and other named family members, was scheduled for August 19.
The visit did not take place. Instead, on that date the Darians filed an ex parte application seeking an order prohibiting visitation between J.F. and his father or Shannon, unless J.F. "expressed willingness" to visit. They asserted that being forced to participate in prior visits had caused J.F. to have a "mental meltdown" and to threaten suicide. The application also stated J.F. had "shown significant progress in recent months after contacts with Shannon and [his father] were suspended," and that Shannon "has disqualified herself for visitations with [J.F.] because of the deliberate harm she has inflicted on him."
On August 19, the GAL filed a declaration in response to the Darians' ex parte application regarding visitation. She summarized the timeline of events. The GAL concluded her declaration by stating she believed it was in J.F.'s best interests to continue with his visits with his extended family.
On August 20, the probate court issued an order to show cause as to why the Darians' temporary guardianship should not be terminated, due to the court's concerns the Darians were not complying with its visitation order; the court set a remote hearing for August 23.
At the August 23 hearing, A. Darian explained that when he was contacted by the visitation monitor on August 14 about the visit on August 19 at 5:00 p.m., he told her "the scheduled time would be in conflict with [J.F.]'s schedule and, also, that I had not received a formal court order yet with all the details." He acknowledged the monitor had called him again on August 17 to confirm the visit, and he had again replied that the time did not work for J.F.'s schedule and he "expected some adjustment to the time ...."
A. Darian then apologized to the court for "my mistake in misunderstanding the process," and he promised to "make a commitment to follow the court order going forward, as I have in the past."
The visitation monitor assigned to the August 19 visit also appeared at the hearing. The probate court asked if she could "share any light on the situation." The monitor stated A. Darian "has not been cooperative with arranging these visits at all." She noted that "everybody else managed to show up at the park that day at 5:00 o'clock after they got the ex parte notice. So I'm a little confused why [A. Darian] was saying he didn't have enough time." At that point, A. Darian interrupted with "I have something to say"; the court allowed him to question the visitation monitor.
The probate court then asked the GAL whether she supported visitation with all family members, and she responded affirmatively. The GAL informed the court she had also sent an email to A. Darian on August 17, attaching a copy of the court order setting the August 19 visit, and "indicat[ing] to him that he would be expected to show for the visit." She also stated, "I have explained to [A.] Darian that outside another court order . . . the order stood and that he was to show up at 5:00 ...." She explained her concern about A. Darian was "that he's come up with a variety of excuses. Each time, they're different.... It hasn't appeared that he wants the visit to take place ...."
The court reminded the parties that it "has been concerned about the issue of visitation" for some time and had previously warned that "we needed to do something about the visitation. When nothing occurred by the July 22nd date, that's when I authorized [the GAL] and the monitor . . . to have a visit with the maternal great grandfather . . . and his wife, and thereafter go forward with visits to other people. And that didn't occur."
The court then terminated the Darians' temporary guardianship and appointed Shannon as J.F.'s temporary guardian. A. Darian asked the court if he could speak again. The court allowed it, and A. Darian acknowledged he had "made a mistake" and promised he and his wife would "make a commitment going forward" to allow visitation. He added "I cannot imag[in]e how damaging it would be for [J.F.] to . . . remove him from our house." He suggested the court should consider terminating his role in the guardianship while leaving his wife as sole temporary guardian. The court rejected the option and observed that throughout the proceedings, A. Darian had attempted to control events and thus it seemed likely, if his wife remained as J.F.'s sole guardian, that he would continue to control things "behind the scenes."
J.F. was transferred into Shannon's custody that same day.
On September 30, 2021, A. Darian filed a lengthy declaration in which he sought to "point out a few highlights" from the past 21 months. He criticized the court's decision to terminate the Darians' guardianship, and argued it had been traumatic for J.F. But he also acknowledged "that since August 23rd, barriers between us and [Shannon] have been broken." He assured the court they "have been able to come together for a common purpose and a shared mission, which is to do the best we can for [J.F.] . . . We are not each other's nemesis."
On October 8 (six weeks after the transfer of temporary guardianship to Shannon), the guardianship trial resumed. The Darians confirmed they were still pursuing their own guardianship petition. J.F.'s father told the court he was opposed to the Darians' petition and was in favor of Shannon's petition. A. Darian and Shannon offered additional testimony.
On November 23, 2021, the probate court services department filed a supplemental investigation report, addressing J.F.'s then current placement with Shannon.
The hearing resumed again in December 2021. The witnesses included Samuel Bonderov, the professional visitation monitor for the December 2020 court-ordered visit between Shannon and J.F. at the park. He testified that although a supervised visitation usually maintained a separation between the custodial and non-custodial participants, A. Darian insisted on staying and Shannon acquiesced because she was concerned the visit would not take place otherwise. Bonderov also testified he saw no indication during the visit that J.F. was afraid of Shannon. At the conclusion of the hearing, the court granted Shannon's guardianship petition and denied the Darians' petition. It also discharged the GAL.
The court issued its SOD on December 28, 2021. The court made two "Findings": (1) the court found by clear and convincing evidence that granting Shannon's petition to be appointed guardian was in [J.F.]'s best interest; and (2) the court found by clear and convincing evidence that Shannon was suitable and qualified to be the guardian of J.F.
The court stated it had "considered all the investigation reports and recommendation[s] that were prepared in this case," and that "[t]here was no evidence that the transition of [J.F.] living with [the Darians] to [J.F.] living with Shannon was detrimental to [J.F.]"
The court acknowledged Family Code section 3041 reflects that continuity and stability in a child's life is important, and removal from a continuous and stable environment is presumptively detrimental; it then found A. Darian's stated position that J.F. should not be permitted to have contact with his maternal relatives until he was about nine years old "was not in [J.F.]'s best interest." The court concluded "[J.F.] needs the love and support of all his family members."
The court ordered the parties to file any objections to the proposed statement of decision by January 14, 2022. The Darians filed a lengthy objection. It concluded the court's SOD did not "present any 'clear and convincing' evidence" to support its findings that '"Shannon . . . is suitable and qualified to be the guardian"' or that "granting Shannon's petition . . . was in [J.F.]'s best interest."
The Darians accused the probate court of willfully ignoring evidence and asserted "that favoritism played a huge role in the outcome of these proceedings and this court's ruling was rooted in bias and discrimination." Finally, they asserted J.F. was "living a harrowing life" with Shannon and that he feels "betrayed and abandoned and has difficulty trusting anyone." They expressed their concern he "may grow up with psychological issues and may turn to substance abuse to deal with his psychological problems."
The court overruled the Darians' objections, but amended its statement of decision, adding "[t]he court found that the Darian[]s, as temporary guardians, were not acting in [J.F.]'s best interest. [His father] and Shannon testified that they believed [J.F.] was being distracted during their Face Time visits with [him]. The court expressed concern that [J.F.]'s great grandfather, a man in his 90's, have a visit near Christmas 2020. A[. Darian] attempted to control the visit. The great grandfather walked away rather than have a confrontation. When [J.F.] arrived, he asked for his great grandfather and the dog. The court heard the explanation and rational offered by A[. Darian]. However, the way in which the incident was handled resulted in denying [J.F.] a visit with his great grandfather and months of delay in visitation."
The court also addressed the Darians' contentions that J.F. was living a '"harrowing life,"' '"feels betrayed,"' and '"may grow up with psychological issues,"' stating these allegations were "of great concern to the court." The court then reappointed the GAL it had just discharged.
DISCUSSION
1. The Court's Reliance on Inadmissible Evidence
The Darians argue the judgment must be reversed because three of the four alleged "pillars" of the court's decision were not supported by evidence admitted during the guardianship hearing. Those pillars are "(1) '[A. Darian]'s position that, when [J.F.] was perhaps 9 years old, he might be permitted to have contact with the maternal members of his family' [citation]; (2) [J.F.'s father]'s and Shannon's testimony that they believed [J.F.] was being distracted during their Face Time visits with him [citation]; (3) A[. Darian]'s objection to the court's visitation schedule and his 'refus[al] to produce [J.F.] for a scheduled in-person, monitored visit [citation]; and (4) A[. Darian]'s attempt 'to control the visit' between [J.F.] and his great-grandfather [citation]."
According to the Darians, the last three of these factual pillars are based solely on evidence "from hearings that occurred after the close of evidence in the court trial on [the Darians'] guardianship petition and before the opening of evidence in the consolidated court trial on both . . . petitions." They contend the evidence was not contained in sworn testimony, and they were deprived of their right to cross-examine the witnesses making those claims.
We disagree. None of the three challenged "pillars" is included in the probate court's original statement of decision. All are taken from a single paragraph added by the court to its SOD in response to the Darians' accusation that it had treated J.F. "like a dog" when it ordered the temporary guardianship transferred to Shannon.
The court began that paragraph by denying the Darians' assertion; it then added additional context to support its decision to transfer temporary guardianship to Shannon. The court emphasized it had "found that the Darian[]s, as temporary guardians, were not acting in [J.F.]'s best interest"-an unchallenged finding the Darians apparently do not recognize as a pillar of the court's permanent guardianship decision.
Apart from their "pillars" argument, the Darians also argue the court erred because its SOD "expressly relied on the [GAL]'s statement that [therapist] Bevan said [J.F.] had not made any negative comments about Shannon during therapy," despite the fact "those observations relayed inadmissible hearsay," and despite the fact Bevan herself had allegedly denied she said that to the GAL.
The claim is waived. Although the Darians argue they objected to the court's reliance on the hearsay, they point only to their written objection to the SOD, in which they assert the GAL's "statement is completely out of context and at the minimum it is hearsay." That objection, which came after the proceeding was concluded and the court had announced its decision, was untimely. (People v. Demetrulias (2006) 39 Cal.4th 1, 22 ["An objection to evidence must generally be preserved by specific objection at the time the evidence is introduced"].)
As for the Darians' secondary contention that Bevan had denied making that statement to the GAL, it is supported only by a declaration submitted by A. Darian., in which he relates Bevan's allegedly contrary hearsay statements to him. The court was not obligated to credit his evidence over the GAL's.
2. Sufficiency of the Evidence
The Darians contend the evidence was insufficient to support the court's determination that granting Shannon's petition for guardianship was in J.F.'s best interests. Their argument is fatally flawed, however, because it explicitly requires us to accept their assertion that the probate court "ignored" facts that "showed granting Shannon's petition was not in [J.F.]'s best interest."
The facts the court allegedly ignored are that "(1) [Shannon] had repeatedly abandoned [J.F.], (2) she had endangered [J.F.] by leaving him in the care of his drug-addicted father, (3) she had shown contempt for the rule of law, and (4) and she prized her own interests more than [J.F.]'s best interests."
"[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609) Thus, we must presume the court properly considered all of the evidence before it, and in the absence of an affirmative showing that the court "ignored" evidence, we cannot conclude it did. The Darians make no such showing.
We begin our analysis with the presumption '"that the record contains evidence to support every finding of fact ...."' (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) The "'party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient.'" (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409, italics omitted.)
The Darians have failed to meet that "daunting burden." (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329.) The lengthy record before us contains substantial evidence that demonstrates Shannon is a fit guardian for J.F. Indeed, her own testimony, standing alone, supports such a finding. Shannon provided evidence of how well J.F. has done in her custody since she became his temporary guardian, and how she facilitated his continuing contact with the Darians. The probate investigator's report corroborated her claims. The court needed nothing more.
The Darians argue the evidence was insufficient to overcome the statutory presumption that because they were recognized as J.F.'s de facto parents, it would be detrimental to place him elsewhere. (See Fam. Code, § 3041, subds. (a), (c).) We disagree.
Family Code section 3041 addresses the requirements for an order placing a child in the custody of a non-parent, over the objection of a parent, and thus does not directly apply here. Subdivision (a) of that statute provides that before a court can grant custody to a non-parent over the parent's objection, it must find that parental custody would be "detrimental to the child" and that it is in the child's best interests to be placed with the non-parent. Subdivision (c) of that section, which the Darians rely upon, provides that as used in the section, "detriment to the child" includes removal from a stable placement with a person who has assumed, on a day-to-day basis, the role of the child's parent for a substantial period. However, even assuming the statute's requirements can be extended to a case such as this, involving a custody dispute between two sets of non-parents, the Darians fail to acknowledge that by the time the court granted Shannon's permanent guardianship petition and denied theirs, J.F.'s removal from their home had already occurred.
The Darians focus on isolated facts mentioned by the court in its SOD. The Darians' primary complaint is that the court's original SOD mischaracterized A. Darian's assertion that J.F. should have no contact with his maternal relatives until he was nine years old, and they argue the court's entire analysis was undermined as a consequence. But as they acknowledge, the court corrected its original characterization of A. Darian's statement in response to their objections, and thus its final decision did not rest on that allegedly inaccurate premise.
Ultimately, the primary disputed factual issues in this case revolved around the Darians' persistent opposition to allowing J.F. to have contact with his father, Shannon, and other maternal relatives. The court reasonably focused on the observations of neutral third parties such as the visitation monitor, the GAL, and the probate investigators, as well as its own observations of the parties over the course of the proceedings, to help it sort through all of the conflicting evidence. We can only commend its efforts.
For purposes of the court's guardianship ruling, it is arguably immaterial whether the Darians were intentionally misleading the court or were, for other reasons, just incapable of viewing Shannon in a reasonable manner. The result for J.F.-isolation from his father and maternal relatives who loved him-was the same. Consequently, it was not in J.F.'s best interests to leave him in their custody.
3. Failure to Conduct Section 730 Evaluation
Finally, the Darians contend the court abused its discretion by denying their request for appointment of an expert to assess whether J.F. was traumatized by contact with Shannon. They specifically claim "the evidence showed that there was an irreconcilable conflict between [them], on one hand, and Shannon, on the other hand. As explained above, that conflict centered on the parties' dispute over whether [J.F.] suffered anxiety and feared Shannon. That conflict could only have been resolved by the appointment of a neutral expert custody evaluator who had an expertise in childhood psychology." Again, we disagree.
Evidence Code section 730 states in pertinent part, "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required."
The statutory language is permissive. In September 2021, a month after the court transferred the temporary guardianship to Shannon, A. Darian filed a declaration which stated, on page six of seven, "If all this is not enough, we request to have a 730 Evaluation done in this case to determine what will be in [J.F.]'s best interest going forward."
While reasonable legal minds may differ as to what qualifies as a motion pursuant to section 730, that single sentence does not satisfy the statute. "'"The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.'" [Citation] However, the rudiments of fair play include notice, an opportunity to respond, and a hearing." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654.)
The Darians claim they repeated the request for the appointment of an expert at the end of the first day of the resumed evidentiary hearing, when A. Darian reminded the court that he had suggested the appointment of a section 730 evaluator and argued it would be appropriate to do so "[s]ince there has been clearly contradicting testimony about [J.F]'s well being and state of mind." And they did so again, during a closing statement to the court, when A. Darian stated "[i]f there is any doubt, an independent 730 evaluation should be ordered to make sure that the right decision is made ...." Both of those might be fairly described as suggestions; they are not motions.
The Darians' final claimed request for appointment of a section 730 expert came at a March 2022 review hearing, after issuance of the judgment at issue in this appeal. Any error at that subsequent hearing is not reviewable in this appeal from the guardianship judgment.
In any event, even if any of the Darians' requests could be characterized as a "motion" under section 730, we reject their assertion that the court abused its discretion by failing to appoint an expert. Section 730 provides for the appointment of an expert in two cases: "[w]hen it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action." (Italics added.)
If appellants' argument is that the court itself might have required additional evidence, we will not second-guess the court's own determination that it did not. (In re Eric A. (1999) 73 Cal.App.4th 1390, 1394, fn. 4 (Eric A.) ["the trial court is never obliged to appoint an expert to assist it in making a factual . . . determination under Evidence Code section 730 unless, as that section provides, 'it appears to the court . . . that expert evidence is . . . required'"].)
It should go without saying that the existence of contradictory evidence on a factual point does not automatically require any court to appoint an expert to resolve the issue. While there may be cases where the court could benefit from an expert's opinion, that does not mean expert assistance is mandatory in all cases.
Here, the Darians' claims of severe psychological trauma were repeatedly undermined by the evidence presented to the court. Evidence related to the lack of any apparent trauma was corroborated by the testimony of neutral witnesses who saw J.F. interact with Shannon, and who later interviewed him in her home after she assumed custody. The court did not need an expert to confirm its own observations.
And if the Darians' argument is that the court erred by failing to appoint an expert because they needed one to help them prove their case-which appears to be the basis of the conditional request they made initially-there is no such obligation.In a civil case, the general rule is that the parties are responsible for hiring their own experts.
Again, the Darians' request was conditional: "if" the evidence they cited was not enough, the court should appoint an expert.
We find no error in the court's decision not to appoint an expert to evaluate J.F.
DISPOSITION
The judgment is affirmed. Shannon is entitled to her costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J. DELANEY, J.