Opinion
E071697
12-06-2019
Guardianship of the Persons of N.R. et al., Minors. C.R., as Guardian, etc., Petitioner and Respondent, v. R.R., Objector and Appellant.
Wood Law Group, Christopher R. Wood, and Gian Carlo Simonetti for Objector and Appellant. C. R., in pro. per., and for Petitioner and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SICVPG1760676) OPINION APPEAL from the Superior Court of Inyo County. Brian Lamb, Judge. Affirmed. Wood Law Group, Christopher R. Wood, and Gian Carlo Simonetti for Objector and Appellant. C. R., in pro. per., and for Petitioner and Respondent.
After a four-day probate guardianship hearing, the trial court found by clear and convincing evidence that R.R. (mother) had seriously emotionally abused and neglected her two daughters and it would be detrimental to their safety and welfare to remain in her custody. (Prob. Code, § 1514; Fam. Code, § 3041.) The court appointed C.R. (the paternal great-grandmother) as the girls' guardian and ordered that mother "shall have reasonable visitation, or other reasonable access to, or contact with" the girls (the contact order). Over the next several months, mother filed three requests for orders (RFOs) seeking to set a specific visitation schedule and arguing the phrase "reasonable visitation" in the contact order was too vague, thereby permitting the guardian to refuse her in-person visits. In this, her third RFO, mother requested the court order unsupervised, overnight visits one weekend per month.
The court refused to modify the contact order, finding the order—as written and as implemented by the guardian—served the girls' best interests. In this appeal, mother raises multiple challenges to the court's decision. For reasons we discuss below, we find her contentions without merit, and affirm.
I
FACTS
On August 14, 2017, the court issued an order appointing the girls' great-grandmother as their guardian and directing mother "shall have reasonable visitation, or other reasonable access to, or contact with, the [girls]." In its statement of decision, issued on February 8, 2018, the court stated it had found by clear and convincing evidence that remaining in mother's custody would be detrimental to the girls and appointing the great-grandmother as their guardian served their best interests. The court based its detriment finding on its conclusion that the testimony and evidence presented during the hearing showed mother had subjected the girls "to serious emotional abuse and neglect."
Mother did not appeal the August 14, 2017 order appointing the great-grandmother as the girls' guardian nor did she appeal the February 8, 2018 statement of decision. In April 2018, she belatedly attempted to challenge the substance of the order by way of a writ, which we summarily denied.
On April 4, 2018, mother filed an RFO requesting a change in visitation. She sought unsupervised visits one weekend a month "from Friday at 5pm to Sunday at 5pm." She attached to her RFO a document she intended to serve as a declaration (though it did not take the required form). In that document, she said she had not seen her daughters in person since the guardianship hearing because the guardian refused to bring the girls from Magalia in Northern California (where the guardian lives) to Bishop (where mother lives). She said the guardian had told her she didn't think it was in the girls' best interests to visit Bishop, but the girls' relatives were welcome to visit them any time in Magalia.
Mother had previously filed two unsuccessful RFOs—one in September 2017 and another in January 2018.
Mother said the only time she was able to interact with the girls was once a week, over the phone. She believed the guardian was determined to "complete[ly] alienate my daughters from me." She said the girls had stopped calling her mom and telling her they loved her. She asked the court to order "frequent and continuing" visits between her and the girls.
Both the guardian and counsel for the girls opposed mother's RFO. The court held a hearing on June 28, 2018. In support of her request, mother argued her proposed visitation schedule was "very nominal, frankly." She argued that because neither the guardian nor the girls' counsel presented any evidence with their oppositions, her declaration was the only evidence before the court and, as a result, there was nothing in the record to suggest visitation would not be in their best interests.
The girls' attorney argued mother had no right to the visitation schedule she was requesting. She argued probate guardianships are not like dependencies, which often entail reunification plans, or like marital dissolutions, which often entail shared custody between the parents. She said the weekly phone contact mother was getting with the girls was "more than reasonable" under the current contact order and that unsupervised, overnight visits would be "terrible for [the girls]," considering the serious emotional abuse and neglect mother had subjected them to. She said the girls "suffered from the anticipation" of being ordered to stay with mother for an entire weekend. She also pointed out that mother (and her relatives who claimed to miss the girls) could travel to Northern California if they wanted in-person visits.
The guardian took issue with mother's characterization of the events since her appointment. She said she had to make the girls call mother once a week, because they did not want to talk to her.
On September 26, 2018, the court issued a written ruling denying mother's RFO. The court explained that it had the authority to require the guardian to permit mother visitation if it found that doing so would be in the girls' best interests. However, based on the evidence before it—that is, the evidence presented during the guardianship hearing plus mother's statements in support of her RFO—the court concluded the existing contact order was "justified, appropriate and in the [girls'] best interests" and was "being implemented and exercised by the guardian in good faith." In so concluding, the court noted that mother's "averments" did not "establish that any material change in circumstance has occurred since the court's hearing and order granting the general guardianship of the person in this case."
Mother filed a timely appeal.
II
ANALYSIS
As an initial matter, we address the guardian's argument that the order denying mother's RFO is not appealable under the Probate Code. While the guardian is correct that Code of Civil Procedure section 904.1 does not apply and "[a]ppeals in guardianship proceedings lie only from orders specifically enumerated by the Probate Code" (Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 1429 (Kaylee J.)), we disagree with her assertion that this order falls outside the scope of enumerated appealable orders. Probate Code sections 1300 and 1301 list the types of probate orders that are appealable. Relevant here, the list includes "the making of, or the refusal to make" any order "[a]uthorizing, instructing, or directing a fiduciary, or approving or confirming the acts of a fiduciary." (Prob. Code, § 1300, subd. (c).) Because the court's order both refused to direct the guardian to follow the visitation schedule mother requested and approved the guardian's implementation of the current contact order, we conclude it is appealable under the Probate Code.
The guardian was represented by counsel during the guardianship hearing, but represented herself in opposing mother's RFO, as she does in this appeal.
Turning to the merits of the court's decision, mother argues the court erred in three respects—(1) by failing to apply Family Code section 3020, subdivision (b), which declares it a statewide public policy "to ensure that children have frequent and continuing contact with [their] parents"; (2) by applying the "change of circumstances" standard to her RFO; and (3) by failing to define the term "reasonable visitation" as it appears in the contact order. (Italics added.) We conclude each of these arguments fails.
First, Family Code section 3020, subdivision (b) does not apply to contested guardianships, but rather applies once a child's parents "have separated or dissolved their marriage." The Family Code provision that does apply to contested guardianships is section 3020, subdivision (a), which says "the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children." (Italics added.) The provision goes on to state that "children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child." (Fam. Code, § 3020, subd. (a).) In other words, in guardianship cases like this one, the court's main concern is the child not the parent. Thus, the trial court was correct when it concluded that Family Code section 3020, subdivision (b)'s preference for "frequent and continuing contact" with the parents did not apply to mother's RFO, and instead applied the "best interests" standard in subdivision (a). This claim of error fails.
The full text of the provision is: "The Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child, as provided in subdivisions (a) and (c) of this section and Section 3011." (Fam. Code, § 3020, subd. (b), italics added.)
As to her second argument, mother is wrong that the court required her to demonstrate a change in circumstances in order to obtain the relief she sought in her RFO. Instead, the court applied the correct, best interests standard. That is, it considered whether granting mother's proposed visitation schedule served the girls best interests. (See Kaylee J., supra, 55 Cal.App.4th at p. 1432 ["A guardian in a probate proceeding may be ordered to accommodate reasonable requests for visitation and contact with the mother or other person as may be in the best interest of the child" and "[t]he frequency, duration, and nature of the visits are the subject of the court's sound discretion"].) It appears mother confused the court's statement that there had been "no material change in circumstances" since the guardianship hearing (where it found she had emotionally abused and neglected the girls) with the standard the court applied. In referencing the circumstances of the case, the court was simply explaining why ordering unsupervised, overnight visits with mother would not serve the girls' best interests. Namely, that it was still detrimental for the girls to be in mother's care because the family dynamics had not changed. The court's conclusion, stated in clear terms, shows it applied the correct standard. It stated, "from the evidence before the court, the court finds and orders that the existing visitation order is . . . in the best interest of the [girls], and that no change is currently justified." (Italics added.) This claim of error also fails.
Relatedly, mother argues the court was required to grant her RFO because she was the only party who submitted evidence. She points out the guardian and the girls' counsel submitted opposing briefs only and no declarations or other evidence. First, mother is wrong that her declaration was the only evidence before the court. Also before the court was all of the evidence submitted during the four-day guardianship hearing. (Indeed, at the RFO hearing, mother's counsel even acknowledged that the court would review the entire record.) Second, even if mother's premise were correct and her declaration was the only evidence in the record, that doesn't mean the court was required to credit her declaration and grant her request. Any evidence is not the same as evidence sufficient to carry a burden of proof. --------
Finally, we reject mother's argument that the term "reasonable visitation" in the contact order is too vague and that the trial court was required to define it by setting a visitation schedule. What mother fails to understand is, unfortunately for her and other parents in her position, probate guardianships do not guarantee visitation rights.
"Long before the advent of the dependency statutes, probate guardianships were instituted when 'conditions [were] shown to be such, by reason of the mental and moral limitations or delinquency of parents, that to allow the child to continue in their custody would be to endanger [the child's] permanent welfare.' [Citation.] In such cases, courts recognized that the 'right of the parent [to custody] must give way, its preservation being of less importance than the health, safety, morals, and general welfare of the child.'" (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1121-1122 (Ann S.).) "Unlike dependency cases, [guardianships] 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." (Id. at p. 1122.)
"[A]ppointment of a guardian is governed by the Family Code chapters beginning with sections 3020 and 3040." (Ann S., supra, 45 Cal.4th at p. 1123, citing Prob. Code, § 1514, subd. (b).) Family Code section 3020, subdivision (a) declares that "the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children." 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).)
Importantly, "[w]hen the court appoints a guardian, the authority of the parent 'ceases'" and "[t]he guardian assumes the care, custody, and control of the child." (Ann S., supra, 45 Cal.4th at p. 1123, citing Fam. Code, § 7505, subd. (a).) "The court has discretion to grant visitation [citation], but otherwise parental rights are completely suspended for the duration of a probate guardianship [citation]." (Id. at pp. 1123-1124, italics added.)
Mother has premised her appeal on the mistaken assumption that she has a right to visitation. She argues the court's grant of "reasonable visitation" is "hollow" because she is not able to enforce any particular visitation schedule. What mother has overlooked is that (1) she has no right to visitation and (2) the contact order grants reasonable "visitation" or "contact" with the girls, and the guardian has been complying with that order by facilitating weekly phone contact. Mother has not demonstrated the court erred in concluding overnight, unsupervised visits would not be in the girls' best interests.
III
DISPOSITION
We affirm the order denying mother's RFO. The guardian shall recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. FIELDS
J.