Opinion
F061121 Super. Ct. No. AD 15647 Super. Ct. No. AD 15648 Super. Ct. No. AD 15717 Super. Ct. No. AD 15718
12-16-2011
Adoption of L. C. et al, Minors. DENNIS F. et al., Plaintiffs and Appellants, v. ERIC R. et al., Defendants and Respondents.
Janice M. Banducci and Gerald M. Leverett for Plaintiffs and Appellants. Law Offices of Ira L. Stoker and Ira L. Stoker for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John L. Fielder, Judge.
Janice M. Banducci and Gerald M. Leverett for Plaintiffs and Appellants.
Law Offices of Ira L. Stoker and Ira L. Stoker for Defendants and Respondents.
Appellants Dennis F. and Vickie F. appeal from an order vacating their adoption of their minor grandchildren L.C. and K.C. for extrinsic fraud. !(2 CT 200-501.)! We find no error and affirm the order of the trial court.
FACTS
In May 2005 respondents Eric R. and Shonna R. ("the R.'s") petitioned for and were issued letters of temporary guardianship for L.C. and K.C., two minor siblings who are unrelated to the R.'s and who at that time were two years old and six months old, respectively. The petition alleged that the minors' mother, Angela F., showed no interest in the children and had a drug problem, and that her whereabouts were unknown. It alleged that the minors' father, David C., was incarcerated. Shortly thereafter the minors' maternal grandparents, appellants Dennis F. and Vickie F. ("the F.'s") petitioned to be appointed as guardians of the minors and objected to the R.'s guardianship. The minors' mother, Angela F., also objected to the R.'s guardianship. Temporary guardianship letters for the R.'s were extended into November 2005. In September 2005, the court appointed counsel to represent the minors. The parties also agreed to an order granting the F.'s visitation with the minors on alternate weekends.
In November 2005 the R.'s and the F.'s agreed to co-guardianship of the minors, with primary residence with the R.'s. The F.'s had visitation on alternate weekends, and from 5:00 p.m. each Wednesday to 5:00 p.m. Thursday.
In September 2006 the minors' mother, Angela F., petitioned the court to have the R.'s removed as guardians, and requested that only her parents, the F.'s, remain as guardians of the minors. In December of 2006 the parties reached an agreement under which Angela F. would have visitation with the minors and would submit to random drug testing. In September 2007 the R.'s filed a motion to end Angela's unsupervised visits with the minors, based on part on evidence that Angela had failed to submit to drug testing. In October of 2007 the parties reached an agreement which required all visitations by Angela to be supervised. Angela also agreed to withdraw her petition for removal of the R.'s as co-guardians of the minors.
All of the above-described procedural events occurred in probate case No. S-1500-PB-54123 in the years 2005 to 2007. The court's orders were issued by the Honorable Louie L. Vega. The order which is the subject of the present appeal was the culmination of a series of later proceedings which began in June 2008 when the F.'s filed separate petitions to adopt L.C. and adopt K.C. (case Nos. S-1501-AD-15647 and S-1501-AD-15648). In August of 2008 the F.'s filed a petition in the guardianship matter (PB-54123) seeking to remove the R.'s as co-guardians of the minors and to consolidate the guardianship matter with the two adoption proceedings (AD-15647 and AD-15648). The R.'s filed written opposition to the request for their removal as co-guardians, and argued that they (the R.'s) should be permitted to adopt the two minors.
At a September 23, 2008 hearing before Judge Vega on the F.'s petition for removal of the R.'s as co-guardians and to consolidate the guardianship proceeding (PB-54123) with the two adoption proceedings (AD-15647 and AD-15648), Judge Vega set a trial date of December 10, 2008, in his department (Division E), and ordered Family Court Services to conduct a child custody evaluation pursuant to Family Code section 3111. On September 30, 2008, the R.'s filed separate petitions to adopt L.C. and adopt K.C. (case Nos. S-1501-AD-15718 and S-1501-AD-15717.)
On November 7, 2008, Judge Fielder in Division C granted the F.'s petitions to adopt L.C. and K.C. The adoption of the minors by the F.'s terminated the guardianship of the minors by operation of law (Prob. Code, § 1600, subd. (b)), and the Division C minute orders for each adoption note that "guardianship is terminated." The minute orders also reflect that the F.'s were present in court on November 7 but the R.'s were not. Nothing in the record on appeal indicates that the R.'s had any prior notice of the November 7 proceedings in Division C where the F.'s adopted the minors.
On November 18, 2008, the court gave notice of the December 19, 2008, hearing at which the court would consider the dismissal of the R.'s adoption petitions for L.C. and K.C. On December 19 the R.'s appeared, and the matters were continued to February 27, 2009.
The R.'s then filed the motions which resulted in the order that is the subject of the present appeal. On December 31, 2008, the R.'s filed motions to consolidate their adoption actions for L.C. and K.C. with the F.'s adoption actions for minors and to vacate Judge Fielder's November 7, 2008, adoption orders making the F.'s the adoptive parents of L.C and K.C. The motions were made on several grounds, but the ground pertinent to this appeal was the one ultimately relied on by the court to vacate the November 7 adoption orders - that the R.'s were given no notice of the November 7 hearing at which their co-guardianship of the minors was terminated. The R.'s motions presented evidence that the R.'s did not learn of the November 7, 2008, adoptions of the minors by the F.'s until five days later, when the R.'s on November 12 were told about the adoptions in a telephone conversation with a social worker from the Department of Social Services.
The F.'s filed opposition to the R.'s motion to consolidate the R.'s adoption action for K.C. with the F.'s adoption action for K.C., and to vacate Judge Fielder's November 7, 2008, adoption order making the F.'s the adoptive parents of K.C. The F.'s opposition is stamped "not timely" and was filed on January 30, 2009, the same day as the hearing on the motion. No transcript of the January 30, 2009, hearing is included in the record on appeal, and we do not know whether the court considered the F.'s untimely opposition, but in any event nothing in the F.'s opposition presented any evidence disputing the R.'s assertion that the R.'s had no notice of the November 7, 2008, hearing until after it took place and after the adoptions had occurred. The record on appeal includes no written opposition by the F.'s, either timely or untimely, to the R.'s motion to consolidate their adoption action for L.C. with the F.'s adoption action for L.C., and to vacate Judge Fielder's November 7, 2008, adoption order making the F.'s the adoptive parents of L.C.
At the January 30, 2009, hearing on the R.'s motions, Judge Fielder, who had issued the adoption orders on November 7, 2008, found that the R.'s had no notice of the November 7 hearing and that there had been extrinsic fraud, and set aside the F.'s adoptions of the minors in AD-15647 and AD-15648. The court's minute orders show that these orders were made in open court with the attorneys for all parties present. For reasons not clear from the record on appeal, the court's formal written order was not signed and filed until August 13, 2010. The F.'s have appealed from that order.
The court's final order stated: "This proceeding was heard on January 30 2009 at 1:59 p.m. in Division C of the Kern County Superior Court, 1215 Truxtun Avenue, Bakersfield, CA 93301, before the Honorable John L. Fielder, Judge. [¶] Present at said hearing was petitioners, [the R.'s], with their attorney, Ira L. Stoker. [V. F.] was present with her attorney, Janice Banducci. Also present was minors' counsel, Stephanie H. Falk. [¶] The court received and reviewed Case No.'s S-1501-AD-15648, S-1501-AD-15717, S-1501-AD-15718, S-1501-AD-15647, and probate matters. [¶] The matter was submitted by Mr. Stoker and arguments heard by Ms. Banducci. [¶] The court makes the following findings: The court finds that [the R.'s] were not put on notice as to the adoption and guardianship petitions. The court finds that there was extrinsic fraud. [¶] The court orders as follows: [¶] 1. The court will set aside the adoption orders in Case No. S-1501-AD-15647 and S-1501-AD-15648. [¶] 2. The court vacates all orders and strikes both petitions without prejudice. [¶] 3. The minor children, [L. C.] and [K. C.], shall be immediately returned to [the R.'s]. [¶] 4. Pending further determination by the probate court, [the F.'s] shall have visitation with the minor children on the 1st and 3rd weekends of each month. [¶] 5. The court will refer the probate matter back on calendar in the probate department." !(CT 509.)!
DISCUSSION
This appeal requires us to revisit and restate some basic, fundamental principles of appellate review of a trial court judgment.
First:
"'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'"It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that an appellant has the burden of showing reversible error, and that, in the absence of such showing, the judgment or order appealed from will be affirmed. [Citation.]'" (Walling v. Kimball (1941) 17 Cal.2d 364, 373, quoting Hibernia Sav. etc. Soc. V. Ellis Estate Co. [1933] 132 Cal.App.408, 412; accord, Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 261.)
constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)
"All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon an appellant to affirmatively show the existence of the error upon which he asks for a reversal." (Scott v. Hollywood Park Co. (1917) 176 Cal. 680, 681; see Dahlberg v. Dahlberg (1927) 202 Cal. 295, 297.)"'"[E]rror must be affirmatively shown."'" (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) "The burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal." (Coleman v. Farwell (1929) 206 Cal. 740, 741.)
Second:
"'"An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method .... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver .... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial."' (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-815, fn. 1 [], italics in Doers.) '"The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had ...."' (People v. Walker (1991) 54 Cal.3d 1013, 1023 [].) '"No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it." [Citation.]' (United States v. Olano (1993) ___ U.S. ___, ___[].
"'The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610 [] ... : "'In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.'"' (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 784 [], fn. omitted.)" (People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
"Extrinsic fraud is a broad concept that 'tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.' [Citations.] It 'usually arises when a party ... has been "deliberately kept in ignorance of the action or proceeding, or in some way fraudulently prevented from presenting his claim or defense." [Citation.]' [Citations.] [¶] No abstract formula exists for determining whether a particular case involves extrinsic, rather than intrinsic, fraud. 'It is necessary to examine the facts in the light of the policy that a party who failed to assemble all his evidence at the trial should not be privileged to relitigate a case, as well as the policy permitting a party to seek relief from a judgment entered in a proceeding in which he was deprived of a fair opportunity fully to present his case.' [Citation.]" (In re Marriage of Modnick (1983) 33 Cal.3d 897, 905.)
Applying the first of the two above-stated basic principles of appellate review, we must assume that substantial evidence supports Judge Fielder's findings that the R.'s had no notice of the November 7, 2008, hearings at which Judge Fielder granted the F.'s petitions for adoption of the minors. We must also assume, given his January 30, 2009, ruling finding extrinsic fraud, that Judge Fielder himself was unaware on November 7 that competing petitions seeking adoption of the minors by the R.'s were pending at that time. The memoranda of points and authorities submitted by the F.'s in support of their adoption petitions cited and quoted Family Code section 8714.5, subd. (f), which states: "If the child is the subject of a guardianship petition, the adoption petition shall so state and shall include the caption and docket number or have attached a copy of the letters of the guardianship or temporary guardianship. The petitioner shall notify the court of any petition for adoption. The guardianship proceeding shall be consolidated with the adoption proceeding ...." The F.'s were thus fully aware that the R.'s were entitled to consolidation of the guardianship proceeding with the F.'s adoption proceedings, and that upon consolidation the R.'s would receive notice of any hearing to be held on the F.'s adoption petitions. The F.'s obtained the adoption orders, however, before any consolidation of their adoption proceedings with the guardianship proceeding was ordered.
Applying the second of the two above-stated basic principles of appellate review, we also observe that although the F.'s attempt to raise several arguments on appeal as to why the order vacating the F.'s adoptions of the minors was erroneous, there is nothing in the record to indicate that any of the arguments they now attempt to raise were ever made to Judge Fielder at the January 30, 2009, hearing on the R.'s motion to vacate the November 7, 2008, adoption orders. There is nothing in the record on appeal to indicate that the F.'s ever filed any written opposition at all to the motion to vacate the F.'s adoption of L.C. in AD-15647. No transcript of the January 30, 2009, hearing has been included in the record on appeal, so we do not know what oral argument may have been presented at that hearing. The F.'s untimely filed written opposition to the R.'s motion to vacate the F.'s adoption of K.C. in AD-15648, even if it was considered by the court, raised no contention that the R.'s were not entitled to notice of the November 7, 2008, hearing at which the F.'s petitions for adoption of the minors were granted.
DISPOSITION
The court's August 13, 2010, order is affirmed.
On November 8, 2010, the F.'s filed a motion in this court asking this court to take judicial notice of revised birth certificates issued for the minors in May of 2009. (The minors were born in 2003 and 2004, respectively.) On December 9, 2010, this court stated it would defer its ruling on that motion pending consideration of this appeal on its merits. These documents did not yet exist and were not considered by the superior court when that court made its ruling on January 30, 2009. The motion is therefore denied. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2; see also Vons Companies, Inc. v. SeabestFoods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; and People v. Preslie (1977) 70 Cal.App.3d 486, 493.)
On November 19, 2010, the F.'s filed a motion seeking to augment the record with a copy of the superior court's "Register of Actions/Case Docket" for the probate matter (case No. S1500PB54123). This court issued an order on December 13, 2010, stating that we would deem this motion to be a motion requesting that we take judicial notice of the "Register of Actions/Case Docket," and that we would defer our ruling on that motion pending our consideration of the appeal on its merits. Because the "Register of Actions/Case Docket" for case No. S1500PB54123 is a record of the superior court itself, and because the motion requesting judicial notice is unopposed, we grant the motion. We also observe, however, that the F.'s fail to explain the pertinence of the "Register of Actions/Case Docket" to any of the arguments they raise on their appeal.
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Franson, J.
WE CONCUR:
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Levy, Acting P.J.
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Cornell, J.