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A.K. v. C.J. (In re E.C.)

California Court of Appeals, Fifth District
Aug 25, 2023
No. F084782 (Cal. Ct. App. Aug. 25, 2023)

Opinion

F084782

08-25-2023

Guardianship of the Person and Estate of E.C., a Minor. v. C.J., Objector and Appellant. A.K., as Guardian, etc., Plaintiff and Respondent,

C.J., in pro. per., for Objector and Appellant. Maroot, Hardcastle & Jolly and Wayne Hardcastle for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kings County No. 14GC0015. Randy L. Edwards, Judge.

C.J., in pro. per., for Objector and Appellant.

Maroot, Hardcastle & Jolly and Wayne Hardcastle for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

Appellant C.K. (Mother) appeals the trial court's order denying her petition to terminate respondent A.K.'s (Grandmother's) guardianship of Mother's son, E.C. (Minor). Grandmother's petition for guardianship of Minor was granted in January 2017, and five years later, in 2022, Mother sought an order terminating the guardianship under Probate Code section 1601. After ordering an investigation and report and recommendation by the Family Court Services Division, the trial court held a hearing on August 2, 2022, and denied Mother's petition. Mother timely appeals.

All further statutory references are to the Probate Code unless indicated otherwise.

Mother appears in propria persona, while Grandmother is represented by counsel. Although difficult to discern, Mother appears to argue the trial court violated the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA); the trial court lacked jurisdiction, at least in part because the courtroom contained a flag with gold fringe on three sides; as a fictitious entity, Grandmother's attorney is barred from doing any business in any court in California; and Mother's Sixth Amendment right to counsel under the federal Constitution was violated when the court removed her biological father from the courtroom. For the reasons explained below, we affirm the trial court's August 2022 order denying Mother's petition to terminate the probate guardianship of Minor.

FACTUAL BACKGROUND

Grandmother filed a petition for guardianship of Minor in April 2014, when Minor was almost three years old. According to Grandmother's petition, Mother had left Minor in Grandmother's care in November 2013, and Mother went to live with her boyfriend in another city. In December 2013, Mother took Minor from Grandmother, and kept Minor for about a week before Mother brought Minor back to Grandmother. Grandmother sought guardianship of Minor in April 2014 because she asserted she had not seen Mother since January 2014, and she wanted to provide Minor with stability.

The 2014 petition was apparently not pursued by Grandmother after it was filed.

Grandmother filed an amended petition for guardianship in May 2016. The petition stated that Mother was currently reported missing, and Grandmother believed Mother was being trafficked by Mother's current husband. Grandmother indicated Mother sometimes called, but refused to give Grandmother her address or her location. The form petition indicated Grandmother was seeking an ex parte hearing without giving notice of the petition to Minor's Mother or Father. Grandmother stated that if either parent was given notice, it would endanger Minor. Grandmother asserted that Mother's current husband was wanted by law enforcement for serious offenses, and that Grandmother believed Mother's husband was currently trafficking Mother and planned to traffic Minor if given the opportunity.

On May 20, 2016, the court issued an order appointing Grandmother as temporary guardian of Minor while the petition was pending; formal letters of temporary guardianship were issued by the court on May 24, 2016. The order dispensed with notice to Minor's father, Mother and the paternal grandparents. In July 2016, the court ordered an investigation pursuant to sections 1513 and 1516 regarding the appointment of a guardian. A hearing was held on August 8, 2016; Grandmother was ordered to prepare a due diligence report to the court, and the temporary order of guardianship was to remain in place until October 17, 2016. The hearing on the petition was subsequently reset for November 1, 2016.

In October 2016, Mother filed opposition to Grandmother's petition. Mother indicated she had been previously unaware of the guardianship proceedings; she maintained she had never been a missing person, as Grandmother had stated in her petition; and Grandmother had been in contact with Mother when Grandmother filed the missing person report with the Hanford Police Department. Mother alleged Grandmother took Minor wrongfully, and asserted Grandmother's husband had a criminal history and should not be granted any access to Minor. Mother's statement in opposition was notarized, but it was not signed under penalty of perjury.

At a November 1, 2016, hearing, the court referred the parties to meet with a child custody recommending counselor, ordered both parties to file and serve a witness list, and continued the hearing on Grandmother's petition to January 17, 2017.

The petition was heard on January 17, 2017. Mother informed the court she was running 45 minutes late for the hearing; although the court waited approximately one and one-half hours for Mother, she did not appear and the hearing proceeded without her. The court noted Mother's October 2016 opposition letter was not signed under penalty of perjury, and that the civil investigator had been unable to meet with Mother. The investigator confirmed Father had a restraining order against him due to domestic violence committed against Mother. The trial court found there was domestic violence in the home while Minor was present, Mother had a substance abuse problem and there was domestic violence in the home while Minor was in Mother's care. The trial court also found that Minor had been with Grandmother for most of his life, and that ICWA did not apply.

Five years later, in February and March 2022, Mother filed documents with the court, which were apparently construed as a petition to terminate the guardianship of Minor.

Grandmother filed a brief in opposition to the petition. Among other declarations, Grandmother submitted a declaration of Sandra Warmerdam, a licensed clinical social worker, who had been counseling Minor since April 2020. Warmerdam stated the brief visitations Minor had with Mother had "not gone well." Mother was often one to two hours late for her visits, and Warmerdam had witnessed Minor visibly shaken after visits with Mother. Minor had difficulty concentrating and experienced unnecessary anxiety related to visits with Mother and Mother's threats of regaining custody. Minor reported to Warmerdam that Mother had threatened to "snatch him up and take him away from his grandmother." Mother would also bring "random other people who are strangers to [Minor] to the supervised visits." Warmerdam recommended that Mother not be permitted any overnight visits or partial custody of Minor "at any time in the future."

In May 2022, Mother filed a response to Grandmother's opposition, arguing Grandmother had made false statements to the court in her papers, that jurisdiction had not been proven, and that Grandmother's counsel could not appear in court because he had failed to register his fictitious name with the California Secretary of State. Mother also filed two additional documents, including one entitled "PROOF OF CLAIM," and a 95-page document entitled "JURISDICTIONAL CHALLENGE" with a declaration containing signature notations of "/s/ [Mother]" and "/s/ Thomas-Arvel:Benson assistance of counsel."

At a June 14, 2022, hearing, the trial court ordered a civil investigation under section 1600 and set the investigation appointment for July 7, 2022. Mother subsequently filed a document stating that she was unwilling to meet with the court investigator, and that she did "not agree with any of these proceedings." On August 2, 2022, the petition for termination of the guardianship was heard, and Mother and Grandmother were present for the hearing. The court indicated it had reviewed the court investigator's report, and the court adopted the report in full. The court denied the petition to terminate the guardianship, finding it to be in the best interest of the child for Grandmother to remain Minor's guardian.

Grandmother filed a motion to augment the record to include the confidential report the court investigator submitted to the court. The copy of the investigator's report that Grandmother provides with her motion to augment is not certified and, therefore, does not meet the technical requirements of this court's local rules for augmentation. (See Ct. App., Fifth Dist., Local Rules of Ct., rule 1(c), Augmentation of Record and Correction of Omissions from Record [documents provided with request for augmentation of clerk's transcript must be certified].) For this reason, the request is denied. Regardless, augmentation of the record on appeal is unnecessary as Mother does not make any challenges related to the investigator's report or the trial court's reliance on it.

On the same day as the hearing, on August 2, 2022, Mother filed multiple additional documents entitled "DEMAND FOR SANCTIONS"; "DEMAND TO QUASH"; "JUDICIAL NOTICE OF NON CONTRACT"; "MOTION TO QUASH SUMMONS"; "NOTICE OF INTERVENOR"; "PROOF OF CLAIM IN CAMERA"; "RESPONSE TO PLAINTIFF OPPOSITION."

PRELIMINARY MATTERS

I. Mother's Opening Brief

California Rules of Court, rule 8.204(a)(1) requires that all appellate briefs begin with a table of contents and a table of authorities (rule 8.204(a)(1)(A)); that they state each point under a separate heading or subheading that summarizes each point (id., (a)(1)(B)); and that they "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears" (id., (a)(1)(C)). Rule 8.204(a)(2)(C) also requires an appellant's opening brief to "[p]rovide a summary of the significant facts limited to matters in the record." It is well established that "'[i]f a party fails to support an argument with the necessary citations to the record, ... the argument [will be] deemed to have been waived.'" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

Further reference to a rule is to the California Rules of Court unless otherwise indicated.

Mother's opening brief comports with none of these requirements. The 166-page document contains no table of contents, table of authorities, or a factual summary section; there are no citations to the record on appeal, and other than five assertions in all capital letters on the second and fourth pages of the brief, there are no headers that divide or summarize the arguments presented. To the extent they can be discerned, Mother's arguments are not organized in any particular manner, and the document is replete with citations that are unconnected to any cogent point or relevant assertion. Moreover, the brief appears to be a compilation of several documents, including some documents that were filed with the trial court on August 2, 2022.

We acknowledge that Mother is self-represented and understand the difficulties posed by this position. However, her status as a party appearing in propria persona does not allow for preferential consideration. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) "A party proceeding in propria persona 'is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys.' [Citation.] .. . '"[T]he in propria persona litigant is held to the same restrictive rules of procedure as an attorney."'" (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)

Mother is required to follow the rules of appellate procedure and to present an argument supported by the record and applicable legal authority. We are unable to evaluate most of the arguments advanced in Mother's opening brief because they are not presented in a comprehensible manner, nor are the arguments tethered to the facts of this case or accompanied by citation to the record or to relevant legal authority. We are compelled to conclude Mother has forfeited those appellate contentions we cannot decipher or those that are entirely undeveloped. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["An appellate court is not required to examine undeveloped claims, nor to make arguments for the parties."].)

To the extent we are able to ascertain Mother's arguments, we address them below to explain our affirmance. In doing so, we note that "'[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).)

II. Mother's Additional Filings

On June 5, 2023, Mother filed a document that included several separate requests or demands. Mother demands proof of any claim of child abuse or child neglect against her or her former partners; requests judicial notice of charges against Grandmother's husband; demands proof that the trial court has jurisdiction over Mother; requests to include in the record on appeal the transcript from the June 14, 2022, hearing; makes a Freedom of Information Act (5 U.S.C. § 552 et seq.; see Gov. Code, § 7920.000 et seq.) request; demands proof of all evidence of drug use by Mother as alleged by Grandmother; and demands proof that Mother's adoption voids her tribal membership status.

With respect to the June 14, 2022, hearing transcript, that document is already contained in the clerk's transcript; the request is denied as moot. Mother's demand of proof that her adoption voids her tribal membership is construed as opposition to Grandmother's request for judicial notice of Mother's adoption record, which we consider post. Mother's other requests/demands are not supported by any legal authority and/or they are not legally cognizable, and, as such, they are denied.

On July 7, 2023, Mother filed additional documents with the court entitled "AFFIDAVIT OF HARM AND DAMAGES"; and "MOTION FOR HEARING." The first document regarding harm and damages relates to Mother's characterization of Grandmother's guardianship as kidnapping, Grandmother's purported use of false affidavits, and Mother's assertion the trial court has no jurisdiction over her because of her membership with a Native American tribe. We discuss Mother's assertion of tribal membership below as it relates to ICWA, but Mother's claims of kidnapping and false affidavits are not supported by any facts, citations to the record, or relevant legal authority; these bare assertions are not cognizable appellate arguments and we do not address them further. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."].) The document "MOTION FOR HEARING" is a request for oral argument, which was calendared at Mother's request prior to the submission of this document.

Similarly, Mother filed documents on July 28, 2023, entitled "NOTICE OF PARTICIPATION IN TELEPHONIC HEARING[;] NOTICE OF INTERESTED PARTIES" and "AFFIDAVIT OF HARM AND DAMAGES." Neither document is a cognizable appellate filing, and the document labeled as an affidavit presents no cognizable legal arguments and, as such, we do not address it.

DISCUSSION

I. General Background: Probate Guardianships

The guardianship proceedings between the parties stem from a probate guardianship of Minor that Grandmother was granted in 2017. Probate guardianships predate the advent of the dependency statutes. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1121 (Ann S.).) Probate guardianships are not initiated by the state, but by private parties, typically family members. (Id. at p. 1122.) "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 section 1516.5." (Ibid.)

The purpose of a probate guardianship is to protect the welfare of minor children who ordinarily cannot protect themselves. (Guardianship of A.L. (2014) 228 Cal.App.4th 257, 267 (A.L.).) Historically, probate guardianships are established where conditions are shown that allowing the child to continue in its parents' custody would endanger the child's safety or welfare. (Ibid.) Under section 1514, a court may appoint a probate guardian if "it appears necessary or convenient" (id., subd. (a)), but the same section expressly provides that making such appointments are governed by Family Code section 3020 et seq. and Family Code section 3040 et seq., which are family law provisions relating to child custody and the best interest of the child. (Prob. Code, § 1514, subd. (b); see A.L., supra, at p. 267.) Family Code section 3020, subdivision (a), provides "'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.'" Once a guardianship is established, parental rights are "suspended" for the duration of the probate guardianship. (Ann S., supra, 45 Cal.4th at pp. 1123, 1124.)

Under section 1601, upon the petition of a parent, "the court may make an order terminating the guardianship if the court determines that it is in the ward's best interest" to do so. Thus, the best interest of the child is the standard that governs guardianship termination proceedings. (A.L., supra, 228 Cal.App.4th at p. 268; Guardianship of L.V. (2006) 136 Cal.App.4th 481, 490 (L.V.).) "What constitutes the best interest of a child presents an inherently factual issue" and "is 'an inquiry that is particularly founded on application of the trial court's experience with human conduct.'" (A.L., supra, at p. 268.) Where parents seeking to regain custody of their minor child have petitioned to terminate an established guardianship, determining the bests interest of the child will generally involve the trial court's consideration of the parents' fitness and also whether the child has, for a substantial period of time, been living in the guardian's care in a safe, loving and stable environment. (See L.V., supra, at pp. 488-491; see also Fam. Code, § 3041, subds. (b), (c), (d).) Ultimately, however, the "sole criterion" for whether to terminate a probate guardianship is the best interest of the child. (L.V., supra, at p. 491; accord, Ann S., supra, 45 Cal.4th at p. 1124; Prob. Code, § 1601.)

II. Mother Does Not Establish the Trial Court Prejudicially Erred in Denying Her Petition to Terminate the Guardianship of Minor

A. Standard of Review

"The decision whether to terminate a guardianship is committed to the sound discretion of the trial court." (L.V., supra, 136 Cal.App.4th at p. 488.) On appeal, the trial court's factual findings are reviewed for substantial evidence. (Id. at p. 487.) The evidence is reviewed in the light most favorable to the trial court's decision, resolving all conflicts in the evidence and drawing all reasonable inferences in support of that court's findings. (Ibid.) Because a decision whether to terminate a guardianship involves weighing factual matters to evaluate what is best for the minor child, the trial court's determination is subject to deferential review on appeal. (Id. at p. 488.) "'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.'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

B. Mother's Arguments Regarding Jurisdiction

1. Trial Court Had Fundamental Jurisdiction to Grant the Petition For Guardianship in 2017

To the extent Mother makes jurisdictional challenges to the trial court's 2017 order granting Grandmother's petition for guardianship of Minor, the assertions do not relate to the trial court's fundamental jurisdiction; the arguments are untimely, and we do not have appellate jurisdiction to reach challenges to the 2017 order.

"A court lacks jurisdiction in a fundamental sense when it has no authority at all over the subject matter or the parties, or when it lacks any power to hear or determine the case." (People v. Ford (2015) 61 Cal.4th 282, 286.) Subject matter jurisdiction is conferred by constitutional or statutory law. (Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 701.) A lack of subject matter jurisdiction means the entire absence of power to hear or determine a case. (Ibid.)

The trial court had subject matter jurisdiction over Grandmother's 2016 petition for guardianship pursuant to section 1514, subdivision (a), and Mother was personally served with that guardianship petition on July 13, 2016, and subsequently appeared in the action, including at a hearing on November 1, 2016. (See § 1511, subd. (b) [notice of hearing on petition for appointment of guardian may be served in manner provided by Code Civ. Proc., § 415.10]; see Code Civ. Proc., § 415.10 [summons may be served by personal delivery]; see generally ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 210 [party submits to court's jurisdiction by making a general appearance in the action and thereby waives defense of lack of personal jurisdiction].) The trial court's January 2017 guardianship order is not void for lack of fundamental jurisdiction. (See Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1531 (Myah M.).)

Any other challenge to the 2017 order that Mother poses relates only to an act the trial court purportedly performed in excess of jurisdiction. This latter type of challenge does not pertain to the trial court's fundamental jurisdiction and is waivable if not timely asserted. (People v. Ford, supra, 61 Cal.4th at p. 287 [an ordinary act in excess of jurisdiction does not negate a court's fundamental jurisdiction to hear the matter, and the ruling is treated as valid until it is set aside; a party may be precluded from seeking to set aside such a ruling because of, among other things, the passage of time]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409-1410 ["'There is a wide difference between a want of jurisdiction, in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial court is not void, although it may be subject to direct attack on appeal.'"].)

Because the 2017 order has long been final, we have no appellate jurisdiction to reach claims of error that do not relate to the trial court's fundamental jurisdiction to issue that order. (See Myah M., supra, 201 Cal.App.4th at p. 1531 ["A claim that does not concern the trial court's fundamental subject matter jurisdiction is waived if not timely asserted [on appeal]."]; see also Prob. Code, § 1301, subd. (a) [order granting guardianship is final and appealable]; Code Civ. Proc., § 906 [powers of a reviewing court do not include the power to "review any decision or order from which an appeal might have been taken" but was not].) For this reason, we are similarly without appellate jurisdiction over any claims Mother makes with respect to the sufficiency of the evidence supporting the trial court's 2017 order granting the guardianship petition. (Myah M., supra, at p. 1531.)

2. ICWA

Mother argues she is a member of the United Cherokee Nation-Aniyvwiya (UCNA) tribe, and asserts this tribe has jurisdiction over these proceedings. Contained within Mother's brief is a document purportedly written by someone affiliated with the UCNA tribe, apparently located in Missouri. The document is directed to the trial court, and it confusingly argues, among other things, that Mother is entitled to be tried under Tribal Law to determine her guilt. Mother also makes a single reference to ICWA, but she makes no specific argument regarding ICWA. In combination, it appears Mother is asserting an error under ICWA.

Grandmother requests we take judicial notice of a December 18, 2006, court adoption order whereby Mother, then a minor, was adopted by Grandmother's husband, terminating Mother's legal relationship with her biological father, Thomas Arvel Benson. Grandmother maintains this is relevant because Mother alleges she is a member of an Indian tribe. We construe Mother's June 5, 2023, filing regarding her adoption status as opposition to Grandmother's request for judicial notice. We conclude judicial notice of Mother's adoption record is not necessary to our analysis of the issues Mother has presented on appeal, and we decline to take judicial notice of this adoption record for that reason. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials not "necessary, helpful, or relevant"].)

The purpose of ICWA is to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families ...." (25 U.S.C. § 1902.) Among other things, ICWA requires notice to Indian tribes in any involuntary proceeding in state court to place a child in a foster home or to terminate parental rights. (In re Isaiah W. (2016) 1 Cal.5th 1, 8.) Where the court knows or has reason to know that an Indian child is involved, notice must be given to the child's Indian tribe, or if the tribe is unknown, the Bureau of Indian Affairs (BIA), of the pending proceedings and the tribe's right to intervene. (Ibid.; 25 U.S.C. § 1912(a).)

Title 25 United States Code section 1912(a) refers to the "Secretary," which refers to the United States Secretary of the Interior, whose department includes the BIA (25 U.S.C. § 1903(1); accord, In re Isaiah W., supra, 1 Cal.5th at p. 8).

The ICWA and its notice requirements also apply to petitions for guardianship under the Probate Code. (§ 1459.5, subd. (a)(1); see Welf. &Inst. Code, § 224.1, subd. (d)(1)(A); Guardianship of D.W. (2013) 221 Cal.App.4th 242, 249; rule 7.1015.) As it pertains to the trial court's 2017 order granting Grandmother's petition for guardianship, Grandmother filed a Judicial Council Forms, form ICWA-020 as to notification of Indian status. She indicated she had no Indian ancestry that she knew, and she did not indicate Minor had any known or suspected eligibility for membership in a federally recognized Indian tribe. In granting the guardianship petition in 2017, the trial court made an express finding ICWA did not apply. Mother points to nothing in the record indicating the trial court failed to make an appropriate ICWA inquiry or that notice should have been given under ICWA. In other words, Mother does not explain how the trial court violated any inquiry or notice obligations under ICWA in granting the guardianship petition in 2017. (See 25 U.S.C. § 1912(a) [notice to be given when court knows or has reason to know that an Indian child is involved].)

Additionally, as already noted, the court's 2017 order granting the petition for guardianship is not before us in this appeal, and we have no jurisdiction over untimely challenges to that order. (§ 1301, subd. (a) [order granting the letters of guardianship is final and appealable]; rule 8.104(a)(1) [notice of appeal must ordinarily be filed 60 days after the date of service of a notice of entry of judgment or 180 days after entry of judgment]; see Myah M., supra, 201 Cal.App.4th at p. 1531 [appellate court had no jurisdiction to review untimely challenge to guardianship order].)

Moreover, as to the trial court's August 2022 order, Mother does not explain how ICWA applies or how the trial court erred under ICWA with respect to Mother's section 1601 petition to terminate the guardianship. (See § 1459.5, subd. (a)(1) [identifying the type of guardianship proceedings to which ICWA applies].) Beyond that, the information Mother filed with the trial court on August 2, 2022, regarding her own recent tribal membership does not indicate that Minor is eligible for membership with Mother's tribe. But even to the extent it suggests Minor may be eligible, the UCNA tribe is not federally recognized. (25 U.S.C. § 1903(8) [ICWA applies only to federally recognized tribes]; see 88 Fed.Reg. 2112-2114 (Jan. 12, 2023) [BIA's current published list of 574 federally recognized tribes].) As appellant, it is Mother's burden to establish that the trial court erred in some respect, and that the error was prejudicial. (Denham, supra, 2 Cal.3d at p. 564; Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 347.) With no argument as to how ICWA applies here and how it may have been violated, Mother has not met that burden.

3. The Flag Did Not Divest Jurisdiction of the Trial Court

Mother indicates the trial court displayed a United States flag with gold fringe on three sides, and she appears to argue this type of flag is flown only in military courts adjudicating court martial proceedings against civilians. Mother maintains such an event may occur only if the constitution is suspended, the trial court is operating under martial law, and the regular courts are suspended. Based on this, Mother appears to argue the display of such a flag deprived the trial court of jurisdiction or otherwise signified a lack of jurisdiction.

Mother's argument is without merit. The American flag displayed in a courtroom has no effect on a court's jurisdiction, and such claims have been unambiguously and repeatedly rejected by the courts. (See, e.g., Sadlier v. Payne (U.S. Dist. Ct., D.Utah 1997) 974 F.Supp. 1411, 1413 [yellow fringe on flag does not convert courtroom into a "'foreign state/power'"]; Schneider v. Schlaefer (U.S. Dist. Ct., E.D.Wis. 1997) 975 F.Supp. 1160, 1164 [flag claims "frivolous and sanctionable"]; United States v. Greenstreet (U.S. Dist. Ct., N.D.Tex. 1996) 912 F.Supp. 224, 229 [fringed flag does not limit court's jurisdiction]; Vella v. McCammon (U.S. Dist. Ct., S.D.Tex. 1987) 671 F.Supp. 1128, 1129 [yellow-fringed flag did not divest court of jurisdiction]; McCann v. Greenway (U.S. Dist. Ct., W.D.Mo. 1997) 952 F.Supp. 647, 651, fn. omitted [rejecting yellow-fringed flag claim and observing that "Jurisdiction is a matter of law, statute, and constitution, not a child's game wherein one's power is magnified or diminished by the display of some magic talisman."].)

C. Fictitious Entities

Mother contends Grandmother's attorney was required to file a fictitious name/entity statement with the California Secretary of State. She argues that because Grandmother's attorney typed his name in all capital letters on documents filed with the court, he is operating under a fictitious name.

Although it is unclear, Mother's argument appears to be a derivative of an argument addressed in Bryant v. Washington Mutual Bank (U.S. Dist. Ct., W.D.Va. 2007) 524 F.Supp.2d 753, 758-760 where the plaintiff claimed that her name printed in all capital letters represented a fictitious entity created by her birth certificate and other government documents. (Id. at p. 758, fn. 8.) As that court explained in rejecting the plaintiff's argument, an individual is not divided into a separate fictitious entity when his or her name is printed in all capital letters, and this argument and its derivations have been repeatedly rejected. (Id. at p. 760; see, e.g., McLaughlin v. CitiMortgage, Inc. (U.S. Dist. Ct., Conn., 2010) 726 F.Supp.2d 201, 209-210 [explaining and rejecting theory under which the plaintiff asserted a name in capital letters represented a fictitious corporate entity].) Regardless that any person's or entity's name was printed in capital letters on any document filed in this case, this typeface does not represent a fictitious or separate entity from the person or entity identified. Mother's argument that Grandmother's counsel is barred from doing business before any court in California for failure to file a fictitious entity statement is without merit.

D. Sixth Amendment Right to Counsel

Mother contends the trial court ejected her biological father from the court in violation of her federal Sixth Amendment right to counsel, but she does not indicate at which hearing this occurred nor does she provide a citation to the record. The minute order from the August 2022 hearing does not indicate the trial court asked any individual to leave the courtroom, but even if the court had done so at this or any other hearing, that decision would not violate Mother's Sixth Amendment right to counsel.

The Sixth Amendment right to counsel under the federal Constitution applies to adversary judicial criminal prosecutions. (6th Amend. ["In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."]; see Rothgery v. Gillespie County (2008) 554 U.S. 191, 198; see also People v. Fayed (2020) 9 Cal.5th 147, 161.) No Sixth Amendment right to counsel attaches in these guardianship proceedings under the Probate Code because they are not criminal prosecutions. Additionally, there is no indication Thomas Arvel Benson is currently licensed to practice law in this state. Individuals unlicensed to practice law may not appear in court in a representative capacity. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965 [well settled that persons may represent their own interest in legal proceedings, but may not "'"practice law [for another] in this State unless [they are] active member[s] of the state bar"'"].)

Finally, although a parent is statutorily entitled to counsel in a proceeding under section 1516.5 to terminate parental rights (id., subd. (c)), this guardianship proceeding did not involve any petition or request to terminate parental rights under section 1516.5.

Having carefully considered Mother's opening brief and the other documents she has filed, Mother has not established the trial court abused its discretion in denying her petition to terminate the probate guardianship under section 1601.

DISPOSITION

The court's August 2, 2022, order denying the petition to terminate the guardianship of Minor is affirmed. The parties shall bear their own costs. (Rule 8.278(a)(5).)

WE CONCUR: POOCHIGIAN, Acting P. J. SMITH, J.


Summaries of

A.K. v. C.J. (In re E.C.)

California Court of Appeals, Fifth District
Aug 25, 2023
No. F084782 (Cal. Ct. App. Aug. 25, 2023)
Case details for

A.K. v. C.J. (In re E.C.)

Case Details

Full title:Guardianship of the Person and Estate of E.C., a Minor. v. C.J., Objector…

Court:California Court of Appeals, Fifth District

Date published: Aug 25, 2023

Citations

No. F084782 (Cal. Ct. App. Aug. 25, 2023)