Opinion
C092321
04-06-2022
Guardianship of the Persons G.N. et al., Minors, v. K.V., Objector and Respondent; C.G. et al., Petitioners and Respondents, G.N. et al., Appellants.
NOT TO BE PUBLISHED
Super. Ct. No. STK-PR-GP-2018-0001145
RAYE, P. J.G.N. and M.N., through counsel appointed by this court, appeal from the order denying petitions for guardianship filed by their paternal grandmother, C.G., and paternal uncle, C.N. (petitioners).
This action is governed by Family Code section 3041, which "prohibits a court from granting custody of a minor to a person who is not the child's parent and over the parent's objection without first finding that granting custody to the parent would be detrimental to the child and granting custody to the nonparent is required to serve the child's best interest. (Fam. Code, § 3041, subd. (a).) Detriment to the child must be supported by clear and convincing evidence. (Fam. Code, § 3041, subd. (b).)" (Guardianship of Vaughan (2012) 207 Cal.App.4th 1055, 1059 (Vaughan).)
The trial court concluded that petitioners failed to provide clear and convincing evidence that leaving custody with their mother, K.V., would be detrimental to G.N. and M.N. Counsel for the minors contends that trial court erred because petitioners presented "uncontroverted" evidence of detriment. Counsel further contends that the burden of producing evidence and burden of proof should be shifted to K.V. to show benefit to the minors if she is awarded custody, which she failed to meet.
G.N and M.N. were represented in the trial court by appointed counsel, who filed a notice of appeal on their behalf from the court's order denying the guardianship petitions. We appointed new counsel to represent the minors on appeal. C.G. filed a separate notice of appeal, in propria persona. However, C.G. failed to submit an opening brief and her appeal was dismissed. (Cal. Rules of Court, rule 8.220(a)(1).) Counsel for the minors submitted a designation of record on appeal and filed an opening brief. Respondent K.V., also in propria persona, failed to file a respondent's brief. Accordingly, we decide the appeal on the record and the opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
We will affirm the court's order.
FACTUAL AND PROCEDURAL BACKGROUND
I. Pretrial
On October 4, 2018, C.N. filed petitions for guardianship and temporary guardianship of G.N. and M.N.
In declarations accompanying the petitions, C.N. stated that K.V. was married to his brother who died in September 2017. Since then, K.V. had isolated the minors from the maternal and paternal family. According to C.N., K.V. had a history of marijuana and methamphetamine addiction and a criminal history, including a recent arrest for having a loaded firearm.
C.N. asserted that when family members had been around the minors, they smelled of pot, were dirty and starving. They would often have sores, sometimes filled with puss. G.N. (almost 7) and M.N. (age 4) were left in soiled diapers and were not potty-trained. G.N. was not in school, could barely speak, and did not know colors, the alphabet or his body parts.
C.N. further stated that K.V. has a daughter, Leah B. (age 14) and an autistic son, Leandro B. (age 16) from another father. C.N. claimed that K.V. homeschooled Leah B. to look after the younger children, who were left alone for long periods of time.
We refer to the minors, parties and witnesses by initials, with the exception of Leah B. and Leandro B. whose first names are included because they have the same initials. (Cal. Rules of Court, rule 8.90(b)(1), (2), (10), (11).)
On January 24, 2019, the court granted C.N. temporary guardianship of G.N. and M.N. at a hearing where K.V. was not present. The location of the minors was not known at the time. The court directed counsel for C.N. to submit an order consistent with the court's ruling. No order was submitted.
On February 8, 2019, the court conducted a hearing with K.V. present that the court deemed a hearing on the petition for temporary guardianship. The hearing was continued to allow the court investigator to file a report. The court also referred the matter to the human services agency for investigation.
On February 14, 2019, the court investigator, Nicole Washington, filed a report. As stated in the report, on February 11, 2019, Washington visited a motel suite occupied by the proposed wards, K.V., Leandro B., Leah B., and a small dog. K.V. was pregnant and due to deliver in April 2019. The rooms were cluttered but clean and there was food available for the minors to eat. G.N. and M.N. were in T-shirts and diapers. Washington was told they had just awoken from a nap. M.N. seemed normal in size but G.N. appeared small for a seven-year-old boy. Neither minor was toilet-trained. K.V. stated that G.N. had been diagnosed with developmental delay and she was working with Valley Mountain Regional Center (VMRC) to have M.N. assessed for developmental delay as well. A call to VMRC revealed that neither G.N. nor M.N. had received services there and VMRC had no record of seeing either child. The older brother had been diagnosed with autism and his impairment was evident.
K.V. stated she could not find permanent housing due to bad credit. Her monthly income was from Social Security and child support from the father of the older children. K.V. stated that she homeschools the children and showed Washington an application on K.V.'s cell phone that tracks their progress. K.V. could not explain how the application tracked their progress or show any of the children's actual schoolwork.
Washington visited the three-bedroom home of the proposed guardian, C.N., which included two bedrooms for the proposed wards. The home was clean, utilities were functioning and there was plenty of food available. C.N. had no definite answers as to how he would care for the minors.
Washington recommended denial of C.N.'s guardianship petition. C.N. had a suitable home but no apparent understanding of how to help the minors if placed in his care or the wherewithal to do so. C.N. also had a criminal record, including convictions.
Washington recommended referral to child protective services for G.N. and M.N.
On March 20, 2019, a social worker with the human services agency, Christopher Holden, filed an assessment of C.N. as guardian for G.N. and M.N.
A criminal history check of C.N. revealed multiple drug crime convictions, including a marijuana cultivation conviction in 2018 and a DUI. C.N. was required to register as a narcotics offender. C.N. denied having problems with drugs or alcohol and disclosed only his 2018 conviction for marijuana cultivation. Holden's assessment of C.N.'s residence during a home visit was more detailed but similar to the court investigator's report, as was Holden's assessment of C.N.'s responses to questions regarding how he would address the minors' education, medical and dental needs, and possible developmental disabilities.
Turning to K.V., Holden reported that a criminal history check revealed that she had an outstanding warrant for carrying a concealed weapon in a vehicle.
The majority of Holden's report concerned four visits in February and March 2019 to motels where K.V. and the children were living.
During these visits, Holden attempted several times to interview G.N., but he did not appear developmentally able to engage in the interview. He would not answer questions and only wanted to discuss children's television shows and toys. He was very active and would not sit for the interview. K.V. claimed that G.N. was on the autism spectrum and was going to be seen by specialist at VMRC. A body check revealed a bruise on G.N.'s temple that K.V. reported he suffered while jumping from one bed to another.
Attempts to interview M.N. were also unsuccessful. He was not developmentally able to engage in the interview. He would not answer questions or sit still for the interview. A body check revealed no suspicious marks, bruises or injuries.
Holden found the motel rooms where the family lived to be adequately maintained and structurally sound, all utilities were available, no serious housekeeping problems were observed, there was plenty and adequate food, and G.N. and M.N. had adequate sleeping quarters that were appropriately furnished. K.V. agreed the situation was not ideal and said she planned to move to a permanent residence as soon as possible. Holden concluded "[t]he minors' basic needs for food and shelter were being met."
Regarding specific visits, Holden stated that on February 20, 2019, he contacted K.V. at a motel. K.V. did not appear to be under the influence of drugs. She denied using drugs. K.V. stated that she and the children were evicted from their residence in October 2018 and had been living in motel rooms since then. K.V. said that she hoped to move to a residence soon. She said she was pregnant and going to prenatal checkups.
The motel room was clean and appropriate. There was plenty of food available, including cereals, bananas, oatmeal, pizza, canned food, and "boba drinks." The minors were very active, jumping and running on beds. K.V. denied that she was neglecting the minors' toilet-training, stating that G.N. was toilet-trained but wore a diaper at night and M.N. was not toilet-trained yet.
K.V. claimed that both boys were on the autism spectrum and she planned to schedule an assessment at VMRC the following week. She said she homeschooled all the children. K.V. showed Holden dashboards on her phone for their online school enrollment.
K.V. admitted she had an outstanding warrant but stated she was going to see an attorney to get help with it.
Holden did not smell body odor or marijuana on G.N. and M.N. He checked their teeth and found no noticeable tooth decay.
Holden spoke privately with Leah B. outside the motel room. Leah B. reported she was being homeschooled because she has fibromyalgia and cannot go to a traditional school. Leah B. stated she studies five hours a day online. She said her mother smokes medical marijuana but not in the motel room. She denied seeing K.V. use any other drugs. Leah B. said that she watches her siblings for K.V. occasionally but not for more than an hour at a time. Leah B. stated that she and her siblings shower every day or every other day.
Holden provided K.V. with a self-referral for substance abuse treatment if she felt she needed it for marijuana or any other drug. He discussed safety net case management services with K.V. and she agreed to participate for support with housing resources and resources for children with special needs.
On February 22, 2019, Holden returned to the family's hotel room for an unannounced visit. Leah B. answered the door; K.V. was not there. K.V. called to report she was meeting with an attorney about the warrant and returned in about 90 minutes. K.V. did not appear to be under the influence of drugs.
It was 3:00 p.m. and the minors had been in the room all day. They appeared well. Holden expressed concern about the minors' schooling and lack of VMRC services. K.V. signed a safety net plan agreeing to keep appointments at VMRC for developmental assessments of G.N. and M.N. She agreed to select a pediatrician by February 28, 2019, for the minors to receive checkups. K.V. agreed to ensure that G.N. and M.N. were making progress in schoolwork. She signed release of information (ROI) forms for the minors' online school and agreed to sign ROIs for the pediatrician when selected. Holden found no active safety threats but felt a safety plan would remind K.V. of the things she needed to work on for the minors. Holden scheduled a follow-up appointment for February 28.
On February 28, Holden met with K.V. in the motel room. She allowed him to see the minors and verify they were okay but wanted to speak to him outside the room because they were sleeping. K.V. said the minors were sleeping at 10:00 a.m. because Leandro B. stayed up all night most nights and they cannot sleep until he sleeps. K.V. stated that the minors were scheduled to see Dr. Ahmed on March 7 and 8. She said they were going to do a walk-in appointment with VMRC. Holden noted that he had received the children's educational records from the online provider, which showed only one quiz taken by Leah B. and no other assignments, quizzes or tests done by any other children. Holden discussed with K.V. the importance of having specialists educating the children. K.V. responded that Leandro B. was doing better in her care than in a special education classroom, where she believed he was mistreated. Holden discussed the importance of giving the minors a stable home, not a motel room. K.V. responded that their current housing was temporary and she had sufficient funds from Social Security Insurance to pay for motel rooms.
On March 12, Holden had his final meeting with the family at a different motel. G.N. and M.N. appeared well. Body checks on the minors did not reveal any suspicious marks, bruises or injuries. K.V. reported that she had still not set up VMRC assessment for G.N. and M.N. She showed Holden that G.N. had completed two quizzes in the online school. In response to Holden's expressed concern about the minors living in motels, not attending traditional schools, and not receiving VMRC services while appearing to be developmentally delayed or on the autism spectrum, K.V. assured Holden that the living situation was temporary and said again she was going to do a walk-in appointment with VMRC.
Holden reviewed a sheriff's incident report from a welfare check on February 24, 2019, at 11:00 p.m. on the children in the motel room, which found" 'all were healthy, clothed, well-nourished with all utilities available to them.' "
Holden received a March 8, 2019 e-mail from a safety net services manager that K.V. was reluctant to schedule an appointment and had yet to sign up for services.
On March 20, Holden received verification from Dr. Ahmed's office that he saw G.N. and M.N. on March 8, as well as their half-siblings. None were observed to be malnourished. It was documented that G.N. and M.N. may be autistic and were too upset and angry for thorough physical exams to be completed. A return visit was recommended.
In his closing summary, Holden stated that "the allegations of GENERAL NEGLECT of the minors, [G.N.] and [M.N.], by the mother, [K.V.], were UNFOUNDED. The family is currently homeless and living in motels. The mother has the minors enrolled in an online school. She does not appear to ensure they get significant learning done each day. The minors, [G.N.] and [M.N.], may have developmental delays or be on the autism spectrum. But the mother has not secured services through Valley Mountain Regional Center for the minors. Yet, the mother is meeting the minors' basic needs for food, shelter, medical and dental needs." Holden "determined that there is not a need for the guardianship as the minors are in the care of their mother and are receiving a minimally sufficient level of care with her."
Holden also stated: "The petitioner [C.N.] was assessed and determined not to be suitable, as the petitioner has a history of drug-related criminal arrests and convictions, the last of which occurred in 2018."
On June 6, 2019, C.G. filed petitions for appointment as guardian and temporary guardian of G.N. and M.N. In declarations in support of the petitions, C.G. stated that she was the grandmother of G.N. and M.N. and was filing the petitions because of the court's concerns about the suitability of C.N. as guardian. C.G. stated that she has grandparent visitation with G.N. and M.N. on the second and fourth Sundays of each month, but K.V. prevented their contact with C.G. from October to April and ignored court orders to provide K.V.'s address to her counsel and counsel appointed to represent the minors. C.G. stated that G.N. and M.N. were not potty-trained and G.N. had not been enrolled in school until the online school in February/March 2019. C.G. claimed Leah B. was pulled out school to care for her siblings and "would be left alone for long periods of time while Mother was out partying and doing drugs." C.G. noted that K.V. did not obtain a pediatrician for the boys until required to on February 28 and still had not set up VMRC assessments for them.
C.G. referred to Holden's report that K.V.: (1) claimed the boys were autistic or developmentally delayed and she was working with VMRC but had not set up VMRC assessments or services for the boys; (2) had agreed to seek safety net resources for housing and special needs for the minors but had not signed up for services or made an appointment with the safety net manager; and (3) claimed that the children were enrolled in an online schooling program and did the necessary work but program records showed only one quiz completed by Leah B.
C.G. claimed that K.V. was unemployed, relying on child support and survivor benefits for the children amounting to $4,000 per month, yet had been unable to provide proper housing for them, and "although she has time because of not being employed, she does nothing with the children." C.G. also attributed to K.V. statements regarding plans to move out of California with the children.
C.G. acknowledged that "courts do not take children away just because they are homeless, or just because they aren't receiving the proper medical care and mental services necessary, or just because they aren't received [sic] the proper education services necessary," but questioned, "when a parent isn't capable of doing any of the above when do my grandsons receive the help they deserve?"
On June 13, 2019, the court denied C.G.'s petition for temporary guardianship without prejudice.
On August 26, 2019, the court entered an order authorizing legal counsel for G.N. and M.N. to access their medical records (including Dr. Ahmed's records), VMRC records, and school records (including elementary school records).
On September 6, 2019, Washington filed a second report on the petition for guardianship. Washington stated that C.G. met the criteria to be appointed as guardian, but she did not have custody of G.N. and M.N. and their whereabouts were currently unknown. Washington reported that K.V. contacted VMRC in July 2019 and G.N. and M.N. were scheduled to be evaluated for developmental delay in October 2019. Washington confirmed that the minors were enrolled in elementary school in Stockton.
Washington spoke with C.G., whose primary language is Spanish, through her daughter acting as interpreter. C.G. stated that K.V. has refused to allow visits per court order in August 2019 and C.G. last saw G.N. and M.N. in July 2019. C.G. told Washington that neither child seemed to understand English or Spanish very well and slept the entire time during the visit. Washington tried to locate K.V. and the children but was unsuccessful and had received no communication from K.V.
At a hearing on September 12, 2019, the court appointed C.G. temporary guardian of G.N. and M.N. K.V. failed to appear. Counsel representing both petitioners advised the court that C.N.'s petition was still pending and not dismissed. The court sanctioned K.V. $100 for failing to appear as ordered at a prior hearing in August 2019 and failing to provide documents as ordered. The court required G.N. and M.N. to be immediately enrolled in school and a medical review of the minors conducted.
II. Trial
On November 5 and 6, 2019, the court conducted a bench trial on the guardianship of G.N. and M.N.
A. Petitioners' Case
K.V.: Petitioners called K.V. as the first witness. K.V. was evicted from her residence on October 25, 2018. During the 11-month period that followed, K.V. lived at three different hotels, changing rooms periodically.
Prior to October 2018 when K.V. was served with the first guardianship petition, K.V. took G.N. to the doctor only when he was sick. But there was three-year span when none of K.V.'s children were sick. G.N. and M.N. did not see a doctor for annual checkups in 2018. In 2017, G.N. and M.N. had a pediatrician assigned through Kaiser but G.N. did not have annual checkups. K.V. could not recall the last time before 2019 that G.N. or M.N. saw a doctor for an annual checkup. Both G.N. and M.N. have had DTaP vaccinations but no other vaccinations. In March 2019, when G.N. and M.N. were seen by Dr. Ahmed, M.N. was not able to stand on the scale but the boys did everything else required for the examination.
Prior to October 2018, neither G.N. nor M.N. were seen by a doctor for concerns about autism or to be evaluated for autism. K.V. and her deceased husband decided not to do an early diagnosis. They knew the boys were on the spectrum, but their condition was not as severe as her oldest son and K.V. had been successfully homeschooling him for over nine years. K.V. believed that G.N. was on the autism spectrum because he was delayed in speech and potty-training. Based on M.N.'s delayed speech, K.V. was concerned that he was on the autism spectrum. Twice, in July and August 2019, K.V. took G.N. to be evaluated at VMRC. K.V. did not do it sooner because it took VMRC six to eight weeks to get back to her.
K.V. acknowledged that G.N. and M.N. do not adjust well to change-she said this is a big issue with autistic children-but it was never an issue for G.N. and M.N. to move from one hotel room to another.
Prior to October 2018, G.N. had two years of homeschooling, consisting of writing, reading and math. He did not have to turn in material because it was not required for kindergarten. G.N. did two years of kindergarten because K.V. felt he needed it.
K.V. felt G.N. should go into an educational setting with supports and she planned on obtaining a diagnosis for G.N. for him to have an occupational therapist, speech therapist and a behaviorist. K.V. did not take G.N. to be evaluated previously because they worked on these skills at home, but it was different when G.N. was in public school.
K.V. testified that G.N. was almost eight and in first grade. He is verbal and can write his name but he does not know how to write and spell words. When G.N. was homeschooled, K.V. worked with him on pre-kindergarten and kindergarten appropriate books. G.N. cannot read. K.V. is teaching G.N. to read. K.V. works with G.N. and M.N. together approximately two to three hours a day, with a break. G.N. cannot add but he is learning. K.V. works on math with G.N. one hour a day, five days a week.
K.V. did not move into a residence and enroll the boys in elementary school in August 2019, as she advised the court in a July 2019 hearing, because she was the victim of fraud and the house was not available.
K.V. was pulled over and arrested in August 2019. She was booked and released. Her children were at a Best Western hotel at the time. They were not living there but visiting to use the pool. The children were being looked after by a friend. K.V. was gone for three hours.
K.V. attempted to enroll G.N. and M.N. in school in Waterford but the school informed her that she needed to get their diagnoses. G.N. and M.N. have never been diagnosed with autism.
K.V. testified she has tried to rent but cannot because of her eviction. K.V. is looking for a house to buy. Her mother bought a three-bedroom house in Sonora and K.V.'s plan is to move there with the children. K.V. plans to live with her mother for six months, the approximate time it will take to buy a house.
K.V. acknowledged she is not currently receiving a paycheck. She has never had a job outside the home. K.V. has been a mother since she was 17.
G.N. and M.N. were picked up by law enforcement at the end of October 2019. K.V. was not aware that legal custody of G.N. and M.N. had been given to their paternal grandmother. K.V. did not want to turn over the minors and was placed in handcuffs in the back of the police car. This was the first time the minors had been away from K.V. overnight.
K.V. testified that G.N. and M.N. currently have medical appointments scheduled in November 2019. G.N. has a surgery appointment for "shark teeth" to be removed. G.N. and M.N. are scheduled to be assessed at VMRC on November 13 and 14, 2019.
K.V. testified that G.N. is almost potty-trained but M.N. is not. G.N. asks for a diaper during the day. G.N. has three vaccinations but not his full vaccinations to attend school.
C.N.: C.N. is G.N. and M.N.'s uncle. His brother was their father. Their father died in September 2017. Prior to his death, C.N. saw G.N. and M.N. at least four times a month. After his brother died, K.V. would not let him see or talk to the kids. There were no visits until the family applied for grandparent visitation in September 2017. After that, visitation with C.G. was once a month for six hours. Visits were regular for a month or two but then they were hit or miss.
C.N. filed for guardianship to make sure G.N. and M.N. were going to school and seeing proper doctors for their health. C.N. noticed that their speech was "not up to date" and they were never enrolled in school. G.N. was never enrolled in pre-school.
C.N. was present when the boys went into custody with his mother in October 2019. They were really happy to see their grandmother and gave her a hug. C.N. helped his mother set up appointments for them. The boys have already seen a doctor. C.N. helped make their dentist appointments. C.G. and C.N. tried to enroll the boys in school but their vaccinations were not up to date and M.N. was not potty-trained. G.N. was enrolled but could not start until he got vaccinations.
C.N. testified that G.N. is potty-trained. M.N. is working on potty-training. He is scared of the toilet.
C.N. is concerned because G.N. cannot chew with his front teeth. K.V. was supposed to take him for surgery but never did. C.N.'s aunt has made an appointment to get this condition checked.
C.N. has concerns the minors are not getting a proper education. G.N. can barely count to 10, and the boys could not do their ABCs and 123s. C.N. acknowledged that this could be related to G.N.'s autism.
E.N.: E.N. testified that G.N. and M.N. are E.N.'s nephews; their father was E.N.'s nephew. Before their father died, E.N. saw the boys sometimes often and sometimes not. After their father died, E.N. saw the boys only when their grandmother had them for the day. These visitations were very spread out; sometimes C.G. did not get the boys.
E.N. has seen the boys three times since C.G. got custody. E.N. is helping C.G. with appointments for vaccinations, physicals and the dentist. E.N. went with C.G. to enroll G.N. in school and went to VMRC to set up appointments. G.N. cannot start school because he does not have his vaccinations. There was nothing else that prevented him from starting school.
E.N. is helping because she has a daughter who is autistic. She has been through the VMRC process.
E.N. is concerned that the boys cannot talk and don't know their names.
E.N. testified that G.N. tries to chew on the side because he had a double row of front teeth. His first teeth did not fall out and the others came in.
C.G.: G.N. and M.N.'s father was her son. She stayed at her son's home for a month when G.N. was born. Before her son died, he would bring G.N. and M.N. to her house three or four times a month. When her son passed away in September 2017, K.V. wanted to stop these visits, so C.G. filed with the court for grandparents' visitation in October 2017. C.G. had three or four visits and then went six months without any contact with K.V. C.G.'s visits were increased to two visits per month in 2019, but this only occurred for two or three months and then C.G. could not make contact with K.V. The visitation order required K.V. to notify C.G. 40 hours in advance of her new address and telephone number before K.V. moved, but C.G. did not get that. Before C.G. got custody of G.N. and M.N. at the end of October 2019, C.G. had not seen the boys for about three months.
C.G. always showed up to pick up the boys for each visit. A few times when C.G. came to pick them up, K.V. was not there and Leah B. was caring for the boys. When C.G. had G.N. and M.N., they were asking about Leah B. From what C.G. saw, Leah B. was taking care of them.
C.G. filed for guardianship because G.N. and M.N. need to be in school. They need to be taught how to speak because they do not understand how to say their names in English. C.G. wanted to teach them how to live and get along in society; they can't be in society when they are locked up all the time.
When the police brought G.N. and M.N. to C.G. in October 2019, the boys were not in good condition. They had been outside with no shoes and were dirty. When C.G. got the boys home, she bathed them.
After four or five days, C.G. took G.N. and M.N. to Central Valley Regional Center in Merced, which is like VMRC in Stockton. C.G. also tried to contact the school district in her area. C.G. took G.N. and M.N. to a doctor who did full physical examinations.
K.V. told C.G. that G.N. was going to have surgery on his teeth about two months ago. G.N. did not get the surgery and still needs it. G.N. still has baby teeth on the top and bottom in front with new teeth coming in behind.
G.N. cannot write his name. G.N. can count numbers but cannot write them. He cannot read. C.G. knows that G.N. and M.N. are intelligent, because, now that they are with her, she is teaching them how to answer and give their names, and they are working well.
When C.G. received G.N in October 2019, he was partially potty-trained and is improving as C.G. worked with him.
C.G. testified she lives in a four-bedroom house in Merced. The elementary school that G.N. and M.N. would attend is three blocks away. C.G. is capable of taking the boys to and from school and to doctor's appointments.
C.G. is willing to have G.N. and M.N. have visitation and contact with K.V. if C.G. is granted guardianship. C.G. is concerned about K.V. picking the boys up and having them in her care because on several occasions K.V. has gotten lost. C.G. would like visitation with K.V. to be under supervision, because K.V. in the past would not communicate with C.G. about the boys, would not be there when C.G. came to pick them up, and would give excuses and lie about where she was.
On cross-examination by counsel for K.V., C.G. confirmed that notes from the doctor who conducted G.N.'s full physical examination five days after C.G. had custody of G.N. in October 2019 stated that he was a healthy boy and all findings were normal except for a speech delay. C.G. confirmed that doctor's notes regarding a physical examination of M.N. on the same day stated that he was a healthy boy and the only finding of abnormality was that he had a speech delay.
B. Motion for Judgment: Counsel for K.V. moved for judgment to dismiss the guardianship petitions under Code of Civil Procedure section 631.8, subdivision (a). Counsel argued that petitioners failed to carry their burden to show by clear and convincing evidence that K.V.'s custody of the boys would be detrimental to them. Counsel maintained there was no evidence supporting the guardianship petition. He noted that the report from social worker Holden submitted as an exhibit at trial found that guardianship was not appropriate.
Counsel for petitioners responded that the evidence and testimony presented showed detriment to the minors. Counsel argued that K.V. had signed a safety plan to seek appropriate housing rather than temporary housing in hotel rooms for C.N. and M.N. K.V. was ordered to seek medical treatment for the boys, to put them into appropriate educational settings, and to have them evaluated. K.V. failed to seek medical treatment because the boys would not sit through full physical examinations. K.V. claimed G.N. and M.N. were homeschooled but when Holden checked there was nothing in the system. K.V. said G.N. and M.N. were going to be enrolled in two different schools but that did not happen. K.V. said in February 2019 that G.N. had developmental delays but neither G.N. nor M.N. were evaluated by VMRC.
The court denied the motion stating that "I would like all the evidence presented" and "I'm not sure I agree that [petitioners] haven't given any evidence at this point."
C. Objector's Case
Leah B.: Leah B. testified that K.V. is her mother.
When her father was alive, K.V. primarily took care of G.N. and M.N. Since her father died, K.V. has only asked Leah B. to look after G.N. and M.N. when K.V. has gone to the grocery store. In the last 12 months, the longest period K.V. has left Leah B. alone with her brothers is two hours. This has happened about once a month. K.V. has never asked Leah B. to care for the other children overnight.
Since her father died, the family has lived in five motels. When they were staying in motels, Leah B. always felt safe and never scared. They have never gone hungry and always had plenty to eat. They had lots of clean clothes to wear. In the winter, they had warm clothing and heat. They always had shelter.
Her brothers Leandro B. and G.N. are being homeschooled. K.V. supports Leah B.'s brothers in doing their schoolwork. K.V. sets aside time each week for Leah B.'s brothers to concentrate on their education. K.V. sets aside six hours a day, four days a week for Leandro B.'s and G.N.'s education.
On cross-examination by counsel for petitioners, Leah B. testified that the family changed rooms twice at each hotel. They did not have a kitchen in each hotel room.
R.O.: R.O. testified that she is K.V.'s mother. R.O. is impressed by how much her grandchildren love K.V. R.O. has no concerns about the manner in which K.V. has cared for the children. Under the circumstances she is under, K.V.'s done the best she is able to do.
R.O. recently purchased a home in Tuolumne County. R.O. has given K.V. permission to live with her temporarily. While K.V. is staying with R.O., they will be looking for a place for K.V. to buy or rent.
K.V. has been supportive of her children's education. K.V. has not had them in school but has been working on it. It is difficult to get the children in school when K.V. just has a P.O. box and no residence. At R.O.'s new place, they are going to get the children in school.
R.O. has been present four or five times when K.V. has been reaching out to agencies to get the boys assessed for autism.
R.O. filed a guardianship petition in 2019 for Leandro B. and Leah B. because she was concerned that K.V. might get incarcerated and Leandro. B., who is autistic, might end up in foster care. There was a warrant out for K.V.'s arrest. R.O. withdrew the petition a few months after filing it.
K.V.: K.V. testified that in the last 24 months she had left Leah B. to care for G.N. and M.N. once a week, so K.V. could go to the grocery store. The longest period K.V. left the boys with Leah B. was three hours when K.V.'s car was towed.
K.V. and her husband believed that G.N. was autistic because he was lining up cars and doing repetitive things, which were characteristics that an autistic person would have. Six months after K.V.'s husband died, it was apparent that M.N.'s speech was not improving. It took a long time until VMRC called back to set up an evaluation of G.N. and M.N. K.V. did a walk-in visit to VMRC to try to rush the appointments. K.V. finally got them evaluated through a social worker at VMRC. Recently, a psychologist from VMRC set up appointments to have G.N. and M.N. assessed on November 13 and 14, 2019, the earliest appointments available.
K.V. has no criminal convictions. She has had no interaction with child protective services outside of the guardianship proceeding. Social worker Holden's visit was initiated by the court. The court asked child protective services to investigate allegations of abuse and neglect. On April 11, 2019, the court affirmed the social worker's recommendation not to commence dependency or child protective services proceedings against K.V.
D. Posttrial Proceedings and Trial Court's Decision
On November 13, 2019, a different judge from the judge presiding at trial entered an order granting temporary guardianship of G.N. and M.N. to C.G. with weekly supervised visits of up to four hours with K.V.
On March 13, 2020, the judge presiding at trial issued a tentative decision.
The court found that "[t]he exact length of time [K.V.] and the children stayed in hotels is disputed, but from the information provided during the trial it appears to be at least 9 months."
"[G.N.] was enrolled in online homeschool while living with [K.V.]. The homeschooling was done between 4-5 days a week, and the hours per day ranged from 3-6 hours, depending on the testimony. [M.N.] was not enrolled in any school; if he had been he would have been in preschool. No evidence was presented by either side what school work, if any was being done by [G.N.] or what level of school [G.N.] was testing."
"[G.N.] and [M.N.] are health[y]; however, [G.N.] needed dental work for a number of adult teeth that had come in without his baby teeth falling out. [G.N.] and [M.N.] had some, but not all, of the recommended vaccinations while with [K.V.]. There were allegations that [G.N.] and [M.N.] were not potty-trained; however, no proof was provided if they were totally without potty-training, partially or if it was only at night. In addition, nothing was provided to the Court showing if they could or should have been potty-trained in regards to being on the autistic spectrum."
The court addressed in turn petitioners' allegations that K.V. neglected G.N.'s and M.N.'s medical, dental and educational needs and was unable to provide stability for them.
Taking stability first, the court found that petitioners presented evidence that G.N. and M.N. were homeless for nine months. "While homeless the evidence shows [K.V.] and the children were not on the streets, in a vehicle or in a shelter; the family stayed in various hotels. The exact number of hotels in which [K.V.] and the children stayed in is unclear, but the testimony shows somewhere between 3-6. There is no evidence provided that the children did not have adequate supervision, food or shelter during the time the family was homeless." The court found that petitioners' argument that G.N. and M.N. were on the autism spectrum and moving was unsettling and detrimental to them unsupported by evidence.
Turning to medical care and vaccines, the court found testimony showed that K.V. and her husband made a choice not to get all the children's vaccines, and no evidence was presented that they were harmed as a result. Doctor's notes from physical examinations conducted after C.G. was awarded custody did not show any medical issues.
Regarding allegations that K.V. neglected the boys' educational needs by failing to enroll them in school and obtain services from VMRC, the court noted that K.V. testified that G.N. was homeschooled and enrolled in an online program, which the March 20, 2019 report by Holden confirmed. But the report also stated that K.V." 'does not appear to ensure they get significant learning done each day.'" Doctor's notes from the physical examinations of G.N. and M.N. indicated speech delay, as well. But evidence in the form of school records or evaluations to show the boys were not receiving appropriate education for their age was absent. "[T]he parties agree that [G.N.] and [M.N.] are on the autistic spectrum, but no information is provided as to where on the spectrum or the specific needs of the children. Evidence was not provided to show if the children are high or low functioning or somewhere in between. Nor was any evidence provided to show what services [G.N.] and [M.N.] would benefit from that they were not receiving."
The court concluded: "The evidence provided does not prove by a clear and convincing standard a detriment to the children if they are returned to their mother, [K.V.]. As the first prong of the test was not [met], the Court will not do an assessment as to the best interest of [the] child."
Petitioners and counsel for the minors filed objections to the proposed decision. Notably, counsel for G.N. and M.N. argued that the burden of proof to produce evidence should be shifted to K.V. because she failed to comply with court orders requiring her to provide home, medical, school and VMRC records to counsel for the minors. In ruling on the objections, the trial court observed that this issue was never raised at trial and the tentative decision addressed only the issues that were. The court further explained that, while K.V. did not provide the required information, petitioners and counsel for the minors did not offer evidence or argue that this information was not available from other sources and never brought any discovery motions. Cases shifting the burden of proof involve evidence that was exclusively available to one party or destroyed, factors that were not present in this instance. The court concluded that burden of proof remained with petitioners and was not met. The court adopted the tentative decision as the statement of decision.
The court also issued an order terminating the temporary guardianship and requiring C.G. to transfer custody of G.N. and M.N. to K.V.
DISCUSSION
I
Standard of Review
This court in Vaughan, supra, 207 Cal.App.4th 1055 addressed the standard of review on appeal from the denial of a petition for guardianship under Family Code section 3041:
"The resolution of a legal dispute involves three steps: (1) establishing the facts; (2) determining the applicable law; and (3) applying the law to the facts. [Citation.] 'The first step, determining the relevant facts, is committed to the trier of the facts and is reviewed on appeal with deference to the factfinder's decision by applying the venerable substantial evidence test. [Citations.] We view the evidence in a 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. [Citation.] In short, we review the evidence but do not weigh it; we defer to the trial court's findings to the extent they are supported by substantial evidence. [Citations.]' [Citation.]" (Vaughan, supra, 207 Cal.App.4th at p. 1067.)
"With respect to the second step in the resolution process, determining the applicable law, we independently review all issues of law raised by the parties. [Citation.]" (Vaughan, supra, 207 Cal.App.4th at p. 1067 .)
"The third step, applying the law to the facts, is reviewed in this circumstance under the deferential clearly erroneous standard of review. [Citation.] 'The issue of custody is one committed to the discretion of the trial court. [Citations.] Only in an exceptional case, in which the record so strongly supported a party's claim to custody that a denial of that claim by the trial court would constitute an abuse of discretion may an appellate court itself decide who should be granted custody . . . .'" (Vaughan, supra, 207 Cal.App.4th at p. 1067, quoting In re B.G. (1974) 11 Cal.3d 679, 699 (B.G.).)
II
Family Code Section 3041A guardianship petition for custody of a minor by a nonparent over the objection of a parent is governed by the Family Code. (B.G., supra, 11 Cal.3d at p. 695.)
"Under Family Code section 3040, subdivision (a), parents are first in the order of preference for a grant of custody but 'the court and the family' are allowed 'the widest discretion to choose a parenting plan that is in the best interest of child.' (Fam. Code, § 3040, subd. (b).) Before granting custody to a nonparent over parental objection, the court must find 'clear and convincing evidence' that 'granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.' (Fam. Code, § 3041, subds. (a), (b).)" (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1123; Vaughan, supra, 207 Cal.App.4th at pp. 1069-1070.)
In B.G., the California Supreme Court analyzed Civil Code section 4600, the predecessor to Family Code sections 3040 and 3041, which codified in 1969 the principles we apply here. (B.G., supra, 11 Cal.3d at pp. 696-699.) Beginning with the legislative history, the court noted, inter alia, that the proposed statute was amended to add a requirement that the court find an award of custody to a parent would be detrimental to the child. (Id. at p. 697.) A committee report stated the reason for the amendment:" 'Limitation of the power of the court to award custody of children to persons other than a parent is the primary intent of the provisions in the new act relating to child custody.'" (Ibid.)
The report further stated:" '[B]efore custody can be awarded to one other than a parent, the court must specifically find that an award of custody to a parent would be detrimental to the child, and that the award to a nonparent is required to serve the best interests of the child. What is 'detrimental' has not been set forth with particularity. It is a nearly impossible task to devise detailed standards which will leave the courts sufficient flexibility to make the proper judgment in all circumstances . . . The important point is that the intent of the Legislature is that the court consider parental custody to be highly preferable. Parental custody must be clearly detrimental to the child before custody can be awarded to a nonparent.' [Citation.]" (B.G., supra, 11 Cal.3d at p. 698; see also Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146, 1157 ["The question whether parental custody is detrimental to the child is highly dependent upon facts unique to each child and parent"]; but see In re S.S. (2020) 55 Cal.App.5th 355, 375 (S.S.) [father's problems with obtaining adequate housing due to his poverty could not support finding that returning child to his custody would be detrimental to her].)
The court in B.G. concluded that in enacting the statute, the Legislature did not "intend to disturb the judicial practice of awarding custody to nonparents in preference to parents only in unusual and extreme cases. [Citation.]" (B.G., supra, 11 Cal.3d at p. 698 .) The statute "expressly recognizes that custody should be awarded to parents in preference to nonparents" and "permits [the court] to award custody to a nonparent against the claim of a parent only upon a clear showing that such award is essential to avert harm to the child. A finding that such an award will promote the 'best interests' or 'the welfare' of the child will not suffice." (Id. at pp. 698-699.) In S.S., the court commented that "[t]his is an application of the longstanding protections we afford parents, based on the recognition of their fundamental interest in the companionship, care, custody, and management of their children." (S.S., supra, 55 Cal.App.5th at p. 372.)
Ignoring the standard of review articulated in Vaughan, counsel for G.N. and M.N. argues that the evidence is "undisputed" and "uncontroverted" and asserts the "[t]he question presented in this appeal is thus a purely legal one: is mother's custody of the children detrimental within the meaning of Family Code section 3041?" We disagree and conclude that the trial court did not abuse its discretion in denying the guardianship petitions and awarding custody to K.V.
To begin with, counsel for the minors asserts there is no evidence that the boys are on the autism spectrum. Counsel contends that court was "actually incorrect" in its statements that the parties agreed that G.N. and M.N. are on the "autism spectrum," arguing that C.G. only testified to developmental delay. However, not only did K.V. testify that G.N. and M.N. exhibited characteristics of autistic persons that K.V. and her husband had observed in their son Leandro B., whose autism was apparent to Washington, petitioner C.N. acknowledged that his concern that G.N. was seven years old and could barely count to 10 could be related to G.N.'s autism. Thus, there was evidence from both sides that the minors were on the autism spectrum.
Next, counsel for the minors argues the court ignored "uncontroverted evidence" demonstrating that G.N. and M.N. suffered significant delays in potty-training and speech, and in G.N.'s case, reading, writing, and math, which K.V. refused to address to their detriment.
To be sure, both petitioners and K.V. testified that G.N was partially toilet-trained but M.N. was not, medical records documented speech delay in both boys, and petitioners and K.V. also testified that G.N. could not read or add. On the other hand, there was no evidence that K.V. refused to address these problems or that solely K.V.'s neglect rather than the minors' possible autism was the cause (albeit C.G. testified that G.N. and M.N. were working well in her care).
As the trial court observed, however, the evidence of the level of toilet-training the minors achieved was unclear. Washington stated that both boys were not toilet-trained. Holden reported K.V.'s statement that G.N. was trained but wore a diaper at night and M.N. was not trained. The parties testified that G.N. was toilet-trained but also wanted a diaper.
As the court pointed out, there was no evidence whether autism was a contributing factor to any delay in toilet-training. K.V. testified that she and her husband believed G.N. was on the autism spectrum because he was delayed in speech and potty-training, based on her experience with her older autistic son, Leandro B.
Counsel for the minors contends that K.V. made no effort to have G.N. and M.N. evaluated by VMRC until they were enrolled in school, because she thought she could handle it alone. But K.V. testified that she sought to have G.N. and M.N. evaluated at VMRC and attributed the delay to VMRC's slow response to her request. K.V. testified that she even tried to rush the process by walk-in visits and also called a similar program in another county, but evaluations at that facility were also subject to a significant delay.
Notwithstanding Holden's comment that K.V. did not ensure that the minors "get significant learning done each day," K.V. and Leah B. provided testimony supporting the trial court's finding that K.V. was homeschooling G.N. three to six hours a day, four to five days a week. There was no evidence whether or not G.N.'s lack of progress was related to his being on the autism spectrum rather than K.V.'s neglect. As mentioned, C.N. testified that G.N.'s lack of progress in math could be related to autism.
In addition to observing that there was no evidence where G.N. and M.N. fell on the autism spectrum from low- to high-functioning or what their specific needs might be, the court found no evidence was presented "to show what services" either of them "would benefit from that they were not receiving." To fill this gap, counsel for the minors cites the VMRC Web site that services were available for children under three (faulting K.V. for not inquiring about them), as well as the National Institutes of Health Web site advising that early diagnosis and intervention for autism are likely to have major long-term positive effects. However, neither Web site is in the record. "[P]ublications that are not a part of the trial record cannot be considered on appeal." (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 450, fn. 5; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 631-632.)
Counsel for the minors further contends that other "uncontroverted" evidence, which "standing alone, might not signify sufficient detriment to warrant terminating mother's custody, cumulatively" established detriment by clear and convincing evidence. Again, we disagree.
Counsel claims that K.V. neglected the minors' medical needs and G.N.'s dental condition. However, the trial court found that K.V. and her deceased husband had chosen not to fully vaccinate G.N. and M.N., but "[n]o evidence was presented that the children had been harmed by not having vaccinations." The court cited reports from their physical examinations conducted four days after C.G. obtained custody which showed G.N. and M.N. had no medical issues. Holden's report documented that a welfare check on the hotel room where the family was living on February 24, 2019, found the boys to be healthy. On February 20, 2019, Holden checked their teeth and found no noticeable tooth decay. Counsel for the minors contends that K.V. "failed to address [G.N.'s] dental problems, with permanent teeth erupting but baby teeth not falling out," while at the same time citing K.V.'s testimony that she had made an appointment for the baby teeth to be removed.
Counsel faults K.V. for the period when the family was living in motels. The trial court found that the family stayed for nine months in several hotels but "[t]here is no evidence provided that the children did not have adequate supervision, food or shelter during the time the family was homeless." Indeed, Washington found "the rooms appeared to be clean and there was food available for the minors to eat." Holden reported that "[t]he minors basic needs for food and shelter were being met in the motel room." Counsel for the minors appropriately acknowledges that "[h]omelessness is not a basis for finding detriment on its own, especially here when the family was never on the street . . . ." (See S.S., supra, 55 Cal.App.5th at p. 375.) Nonetheless, counsel argues "it is certainly disruptive of any orderly lifestyle," citing an article from the U.S. Department of Health and Human Services Web site, which again is not in the record of evidence presented to the trial court, thereby confirming the trial court's observation that no evidence was presented that "as [G.N.] and [M.N.] are on the autistic spectrum moving from place to place is unsettling and detrimental to them . . . ."
Counsel for G.N. and M.N. argues that K.V. kept the children with her at all times, did not allow many visits with C.G. despite court orders, and did not take them to the doctor, dentist or school, and "[a]s a result, the children were socially isolated and had no social skills." Assuming that G.N. and M.N. experienced some level of "social isolation," counsel for the minors cites no evidence indicating that their inability to converse with Holden or cooperate with Dr. Ahmed during physicals, which counsel claims resulted from their being socially isolated, were attributable to K.V.'s management of the family, as opposed to their being on the autism spectrum.
Counsel's argument that K.V.'s marijuana use "creates a risk to the children, given there are an infant, and three developmentally delayed children in her care" is devoid of any evidence of detrimental impact on G.N. and M.N. To the contrary, Holden reported that Leah B. said K.V. smokes medical marijuana but not in the motel room. Holden could not smell any marijuana on the minors. He reported that in his home visits with the family K.V. did not appear to the under the influence of drugs.
We conclude that this is not an "unusual and extreme" case. (B.G., supra, 11 Cal.3d at p. 698.) Rather, the evidence shows a mother struggling after the death of her husband to care for G.N. and M.N. and her other children but not neglecting their basic needs. As Holden concluded after an extensive investigation, involving four home visits, petitioners' allegations of general neglect were unfounded because "the mother is meeting the minors' basic needs for food, shelter, medical and dental needs." The evidence emphasized by counsel for the minors (e.g., that K.V. testified falsely with regards to their assessment by VMRC) might clearly show that K.V. could have done a better job in addressing their specific needs to their benefit, but that is not sufficient basis to take them from her. (Id. at p. 699.)
III
Burden Shifting
Counsel for the minors renews on appeal the burden shifting argument advanced in objections to the trial court's tentative ruling. Counsel asserts two grounds for shifting the evidentiary burden to K.V. to prove that her custody was not detrimental to G.N. and M.N.: (1) the burden to produce evidence shifted to K.V. to rebut petitioners' clear and convincing evidence that her custody was detrimental to the minors, and (2) "fundamental fairness" required shifting the burden of proof to K.V. because she failed to provide documents the court ordered her to produce, and, if the documents did not exist, as K.V. testified, that absence was attributable to her neglect in failing to address the children's medical, educational and developmental needs.
We reject the first ground because petitioners did not prove detriment by clear and convincing evidence.
Counsel for G.N. and M.N. also argues that the trial court conflated the standard for burden of producing evidence and the burden of proof in rejecting petitioners' objections to the tentative ruling. This is followed by the assertion that petitioners carried their burden to produce evidence of detriment, purportedly shifting the burden to K.V. "to produce evidence that the children's needs were met," which, so the argument goes, she did not do, so the trial court erred in ruling in her favor. However, counsel acknowledges that the burden of proof remains with petitioners. Thus, the burden to produce evidence cannot be used as an end run around petitioners' obligation to show by clear and convincing evidence that returning custody to K.V. would be detrimental to G.N. and M.N. Moreover, to the extent evidence that K.V. met the minors' needs must be produced, K.V. could rely on Holden's report, which was an exhibit at trial. As mentioned, in the report Holden stated: "[T]he mother is meeting the minor's basic needs for food, shelter, medical and dental needs."
As to the second ground, the general rule is that "[e]xcept as otherwise provided by law, a party has the burden of proof as to each facts the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, § 500.)" '[C]ourts may alter the normal allocation of the burden of proof' based on considerations of fairness and policy. [Citation.]" (In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1267 (Prentis-Margulis), quoting Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1188.) "These burden-shifting decisions recognize that' "determining the incidence of the burden of proof . . .' . . . is merely a question of policy and fairness based on experience in the different situations.'" [Citation.]' [Citation.]" (Prentis-Margulis, at p. 1268.)
"' "In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact." [Citation.]' [Citation.]" (Prentis-Margulis, supra, 198 Cal.App.4th at p. 1268 .) "[A] common trigger for burden-shifting is 'when the parties have unequal access to evidence necessary to prove a disputed issue." 'Where the evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue although it is not the party asserting the claim.' [Citations.]" [Citation.]' [Citations.]" (Ibid.)
These burden-shifting principles have been applied, for example, in wage-and-hour cases where an employer's inadequate records prevent employees from proving claims for unpaid overtime or in a marital dissolution case where one spouse had exclusive control over community property. (Prentis-Margulis, supra, 198 Cal.App.4th at pp. 1267, 1268.) However, these principles have never been applied to the burden of proof between a nonparent and parent in guardianship proceedings, where the express statutory burden exists to vindicate a bedrock parental right. Family Code section 3041, subdivision (b), requiring a clear and convincing showing of detriment, is not a general rule allocating the burden of proof to a claimant such as found Evidence Code section 500, but a specific rule promulgated for a specific policy purpose.
Nor would shifting the evidentiary burden be consistent with the statutory policy, i.e., the preference for parental custody. (B.G., supra, 11 Cal.3d at pp. 693-694 & fn. 23.) A petitioner could simply argue that a custodial parent would or should be in possession or control of documents or other evidence bearing on detriment to the child and failure to produce the evidence relieved a nonparent of the burden imposed by the statute and transferred it to the parent, thereby eviscerating, or at least severely undermining, the parental preference doctrine.
We note that the Legislature included in Family Code section 3041 a provision identifying a circumstance where the burden of proof regarding detriment can shift from a nonparent to a parent. Family Code section 3041, subdivision (d), "provides that if a preponderance of the evidence shows a nonparent has assumed the parental role for a substantial period of time by providing 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. ([Fam. Code, ] § 3041, subds. (c), (d).) 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. ([Fam. Code, ] § 3041, subd. (d).)" (H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 1137.) As between a nonparent and parent in guardianship proceedings, Family Code section 3041 does not contemplate any other circumstance that alters in any way the burden on a nonparent to show detriment to a child by clear and convincing evidence, and we will not engraft one on to the statute.
DISPOSITION
The order denying the petitions for guardianship is affirmed. K.V. shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: HULL, J. DUARTE, J.