Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. P 079874, Bruce A. Young, Judge.
Lascher & Lascher, Wendy C. Lascher and Aris E. Karakalos for Petitioner and Appellant.
Blatz Law Firm, Paul B. Blatz and Sherie A. Taylor for Objector and Respondent.
PERREN, J.
A maternal grandmother seeks guardianship of her five-year-old grandson from his biological father. Father gained custody pursuant to an earlier court order. We affirm the order of the trial court denying grandmother's petition for guardianship because (1) grandmother has failed to show the requisite change of circumstances necessary to modify the earlier order, and (2) even had such a showing been made, the trial court did not abuse its discretion in finding that there was not clear and convincing evidence that custody with father was detrimental to the child.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
A.G. was born in August 2004, to J.G. (mother). Respondent M.S. is A.G.'s biological father (father). Mother lived with her mother, appellant R.G. (grandmother), at the time of A.G.'s birth. Mother had mental disabilities due to a head injury and had problems with substance abuse. She had convictions for petty theft, forgery and possession of a controlled substance.
For the first one and one-half years of A.G.'s life, father did not know that he had a child. Shortly after becoming aware of A.G., father took a paternity test and, on January 12, 2006, he filed a petition seeking custody. In March 2006, mother and father attended mediation. Mother was granted custody of A.G. and father was allowed short supervised visits.
Grandmother filed a petition for a probate guardianship on May 11, 2006, for the admitted purpose of derailing father's custody petition. On June 30, 2006, an investigator appointed by the court filed a report recommending that the petition be denied and that all custody matters be pursued in the family law case. The court adopted the recommendation and took the guardianship matter off calendar in deference to the ongoing custody case.
On July 12, 2006, the court declared father to be A.G.'s biological father based on the paternity test results. In October 2006, father's visitation time was increased and his visits were allowed to be unsupervised. On June 6, 2007, the court granted mother and father equal custody and visitation. One week later, on June 13, 2007, after being informed that mother had tested positive for drugs, the court granted sole custody to father with visitation for mother supervised by grandmother.
On August 28, 2007, mother filed a request to reinstate the prior custody orders. On October 3, 2007, father and mother attended mediation. While the request for reinstatement was pending, mother assaulted father during a visitation exchange, and, on September 28, 2007, father obtained a temporary restraining order requiring mother to remain 100 yards from father and A.G.
Grandmother hired a private investigator. She was concerned about A.G.'s well-being because father had a history of alcohol abuse and had been convicted of petty theft, false identification to a police officer, driving while under the influence and had probation violations. The investigator conducted a surveillance of father over a three-day period, on September 28, and October 2, and 5, 2007. He reported that he had observed father drinking beer on one occasion, on September 28. Father denied that he had been drinking beer on that date. The investigator also reported that father left A.G. unattended in his car for 14 minutes outside a store on October 2. Father said that he left A.G. in the car while he faxed a bid to a customer, but could observe A.G. in the car while he was in the store.
On October 12, 2007, grandmother filed a motion for joinder and grandparent visitation. Mother and father agreed to permit grandmother to participate in mediation. The court modified the temporary restraining order on October 22, 2007, allowing mother professionally-supervised visitation.
Following mediation on November 1, 2007, the mediator recommended that father have sole legal and physical custody, with professionally-supervised visitation for mother and unsupervised visitation for grandmother. On November 2, 2007, the court adopted the recommendation and granted sole custody to father with visitation for mother and grandmother. The order also provided that mother not be present during grandmother's visitation. Grandmother had mother move out of her house so that her visitation with A.G. would not be jeopardized.
On December 5, 2007, father brought A.G. to grandmother's home for a scheduled visit. Grandmother believed that father had been drinking. Father admitted that he had been drinking, but had not done so in A.G.'s presence and had a friend drive him and A.G. to grandmother's home. On December 18, 2007, grandmother filed a second petition for guardianship. On December 21, 2007, the court granted temporary guardianship to grandmother and ordered supervised visitation for father. The temporary guardianship expired by its terms on February 28, 2008.
At oral argument, grandmother's counsel was unsure whether father regained custody of the child at the time the temporary guardianship expired on February 28, 2008. Subsequently, we received a letter from counsel stating that "this expiration date was stayed pending resolution of the permanent guardianship hearing." No such stay order appears in the record.
The court appointed a second investigator who conducted an investigation in January 2008. He recommended against granting custody to father based on the December 5 drinking incident and the incident on October 2 when father left A.G. unattended in his car.
On April 2, and 3, 2008, the court conducted a hearing on the guardianship petition. At the hearing, the court heard testimony from the second court-appointed investigator, grandmother's private investigator, grandmother, father, and father's pastor. At the conclusion of the hearing, the court denied the guardianship petition, dissolved the temporary guardianship and reinstated its prior custody order granting sole custody to father.
In ruling from the bench, the court summarized A.G.'s custody history, starting with the first custody order in March 2006, in which mother was granted custody and father visitation. On July 12, 2006, the court found father to be the biological father. In October 2006, the court continued primary custody with mother and increased father's supervised visitation. On June 8, 2007, the court ordered joint equal custody between mother and father, but granted father sole custody on June 13, 2007. Following grandmother's joinder and mediation, custody was awarded to father with visitation for mother and grandmother.
Based on this chronology, the trial court concluded that "we have a custody order in place making [father] the primary custodial parent of this child ... which... became modified by the revived petition for guardianship...." The court found it would be inappropriate to apply section 3041, subdivisions (d) and (c) of the Family Code and that "it is appropriate to use a clear and convincing standard in this case before the court removes custody of a child from [father] because that's exactly what I'm being asked to do. [¶] I'm asked to use the guardianship proceeding to appoint [grandmother] as the guardian and, therefore, negate and eliminate custody orders that since June of '06 [father] has had custody of this three-year-old." The trial court also found that grandmother "has not met her burden of clear and convincing [evidence] to convince the court to grant the guardianship petition."
All further statutory references are to the Family Code unless otherwise stated.
On appeal, grandmother contends the court erred in removing A.G. from a "stable custodial environment" in grandmother's home, erred in applying the clear and convincing standard of proof against grandmother after determining that she was a person described in section 3041, subdivision (c), and applied the wrong time frame when determining what constitutes a "stable placement" for purposes of resolving the "detriment" issue under section 3041.
We requested that the parties submit supplemental briefing discussing whether the changed circumstances test applies because, at the time the guardianship was decided, a final custody order was in place. (See, e.g., Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.)
Grandmother responded that the changed circumstances test does not apply because the guardianship petition does not seek to remove A.G. from his longtime home nor to completely isolate him from father. Rather, her petition seeks reinstatement of the status quo that had existed for the first two and one-half years of A.G.'s life. Grandmother contends that, even if the changed circumstances test applies, she has carried her burden because the court granted her temporary guardianship based on the report by her investigator that father drank beer on one occasion and left A.G. unattended in his car for 14 minutes on another.
Father contends the changed circumstances test does not apply because both parties agree the custody dispute is governed by section 3041 and the changed circumstances test applies only to custody disputes between parents.
DISCUSSION
Standard of Review
Child custody orders are reviewed for abuse of discretion. Under this test, we must uphold the trial court if its ruling is correct on any basis, regardless of whether such basis was actually invoked. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 995-996.) "'"... An appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts...."...'" (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.) "'... [W]e have no power to judge... the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom....'" (In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200.) The testimony of a single witness, even that of a party, may be sufficient to constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
Appellant Failed to Show Changed Circumstances
We are not persuaded by the parties' arguments that the changed circumstances test does not apply. The parties have not cited and we have not found any case or other legal authority applying section 3041 where, as here, a final custody order has been entered. (See Guardianship of Simpson (1998) 67 Cal.App.4th 914, 921 [§ 3041 "deals with an involuntary initial loss of custody against parental wishes"].) We also have not been cited to any legal authority limiting the changed circumstances to custody disputes between parents. (See Burchard v. Garay (1986) 42 Cal.3d 531, 535, fn. omitted [the changed circumstances rule applies "whenever [final] custody has been established by judicial decree"].)
Grandmother's argument that the change of circumstances test does not apply because A.G. lived with her for the first two and one-half years of his life and with father for a shorter time lacks merit. In Speelman v. Superior Court (1983) 152 Cal.App.3d 124, the court rejected a similar argument. In that case, a California mother and an out-of-state father had joint legal custody of their child. Father had custody of the child during the school year and mother had custody during the summers. Mother grew dissatisfied with the arrangement and sought a change of custody. The trial court granted mother's petition and gave sole custody to mother, using the best interest standard rather than the changed circumstances rule. The appellate court reversed. In doing so, the court rejected mother's argument that the changed circumstances test did not apply because the child's nine-month stay with his father during the school year did not create an established mode of living or transform father's home into the child's accustomed environment. The court stated: "The period of father's custody is significant only in determining whether the changed circumstances are important enough to justify dislodging the children from their current environments. It cannot be used as an excuse to permit a change of custody without changed conditions." (Id. at p. 130.)
Under California's statutory scheme governing child custody determinations, the overarching concern is the best interest of the child. (See In re Marriage of Burgess, supra, 13 Cal.4th at pp. 31-32 ["In an initial custody determination, the trial court has 'the widest discretion to choose a parenting plan that is in the best interest of the child.' (Fam. Code, § 3040, subd. (b).) It must look to all the circumstances bearing on the best interest of the minor child"].) The court and the family have the widest discretion to choose a parenting plan that is in the best interest of the child. (§ 3040, subd. (b).) Although the statutory scheme only requires courts to ascertain the best interest of the child (§§ 3011, 3020, 3040, 3087), our Supreme Court has articulated a variation on the best interest standard once a final judicial custody determination is in place. Under the changed circumstances rule, a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change in circumstances justifying modification.
In this case, a final custody order was issued on November 2, 2007, awarding father sole legal and physical custody of A.G. At that time, the court undertook a best-interests analysis, looking at all the circumstances bearing on the best interest of the child. Grandmother did not appeal that order, and it has become final. As a final custody order was in place when the guardianship petition was tried, the petition was in essence seeking a modification of that order. Therefore, the burden was on grandmother to make a threshold showing of "a significant change of circumstances" that would support the modification. (See Montenegro v. Diaz, supra, 26 Cal.4th at p. 256; In re Marriage of Burgess, supra, 13 Cal.4th at p. 37; see also In re Marriage of Carney (1979) 24 Cal.3d 725, 730 [matters that have been tried, facts determined, and orders made can be modified only if the moving party shows how a material fact or facts have changed since the last order was made that require the court to reconsider its earlier decision and order].) This rule "'... fosters the dual goals of judicial economy and protecting stable custody arrangements....'" (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088; Burchard v. Garay, supra, 42 Cal.3d at p. 535.)
The changed circumstances rule provides that once it has been established a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements. The changed circumstances rule applies after any final judicial custody determination. (Montenegro v. Diaz, supra, 26 Cal.4th at pp. 256-258.)
"The changed circumstances test requires a threshold showing of detriment before a court may modify an existing final custody order that was previously based upon the child's best interest. The rule is based upon principles of res judicata. [Citation.] In these cases, 'a child should not be removed from prior custody of one parent and given to the other "'unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change.'"'" (Ragghanti v. Reyes, supra, 123 Cal.App.4th at p. 996.)
The changed circumstances rule is an adjunct to the best interest test. It provides that once a particular custodial arrangement has been established in the best interests of a child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256; see also Burchard v. Garay, supra, 42 Cal.3d at p.535.)
Here, the trial court, understandably, did not state that it was applying the changed circumstances standard when it made its order. This does not mean the order must be set aside, however. "An application for modification of an award of custody is addressed to the sound discretion of the trial court, and its discretion will not be disturbed on appeal unless the record presents a clear case of abuse of that discretion." (Messer v. Messer (1968) 259 Cal.App.2d 507, 509.) "Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.'" (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.)
And, although the court did not invoke the changed circumstances test in its order denying the guardianship petition, the record shows that it did apply this standard. The court stated: "[W]e have a custody order in place making [father] the primary custodial parent of this child as of that November order.... [¶] I'm asked to use the guardianship proceeding to appoint [grandmother] as the guardian and, therefore, negate and eliminate custody orders that since June of '06 [father] has had custody of this three-year-old.... [¶] I have no evidence that the child does not do well with [father]. In fact, the videos, the testimony of [grandmother], the testimony of Pastor Nelson all suggest that he does well. In fact, [the court investigator] also found that the child did well.... [¶]... A lapse in judgment in choosing to drink on December 5th... and a misstep as a parent is not something unheard of. And, basically, its my finding that that issue, although a lapse in judgment can obviously greatly influence the investigator in this case that you should not have custody of [A.G.], influenced him, I don't find that that is such a major misstep that you don't have the right to fix that.... [¶] And the reality of the situation is, this proceeding that's here today is seeking... to take custody away from the biological father and orders he was given in the family law case."
The evidence of changed circumstances in the record is insufficient to support a modification of custody. That grandmother was awarded a temporary guardianship for a brief period of time based on two minor parental infractions is not sufficient to meet her burden of proof. At the hearing, the court heard testimony from grandmother, father, two investigators and father's pastor. The only change of circumstance that was presented was that father had left A.G. unattended in a car for 14 minutes and that he had been drinking on November 5 when he brought A.G. to grandmother for a visit. After considering all the evidence, the trial court stated: "I have no evidence that the child does not do well with [father]. In fact, the videos, the testimony of [grandmother], the testimony of Pastor Nelson all suggest that he does well. In fact, [the court investigator] also found that the child did well."
The trial court weighed all the evidence and found that the two episodes leading to the temporary guardianship order did not warrant modifying an existing custody order. As substantial evidence supports the trial court's order, we must affirm.
Burden of Proof Under Section 3041
Under section 3041, when a nonparent seeks custody of a child, the burden is normally on the nonparent to prove by 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." (§ 3041, subd. (a).) When, however, the nonparent seeking custody is someone "who has assumed, on a day-to-day basis, the role of [the child's] parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time," section 3041 establishes a presumption that it is in the child's best interest to remain in the custody of the nonparent "and that parental custody would be detrimental to the child," and the burden shifts to the parent to prove otherwise by a preponderance of the evidence. (§ 3041, subds. (c), (d).) In other words, in a custody dispute between a child's parents and a nonparent who has assumed the role of the child's parent for a substantial period of time, the parent must prove by a preponderance of the evidence that granting him or her custody would not be detrimental to the child and would be in the child's best interest. If the parent does not carry this burden of proof, then the presumption prevails and custody of the child must remain with the nonparent.
Even if section 3041 applied, neither the law nor the facts support grandmother's arguments. Her contention that we review the record de novo is without merit. Guardianship orders, like all custody orders, are reviewed under the abuse of discretion standard. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32; Ragghanti v. Reyes, supra, 123 Cal.App.4th at pp. 995-996.)
Her argument that she is a person falling within subdivision (c) of section 3041 also is without merit. By its terms, subdivision (c) applies only when a child is presently in the custody of a nonparent relative: "As used in this section, 'detriment to the child' includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent...." (Italics added.) At the time grandmother's guardianship petition was heard, A.G. was in the custody of his father. There is no authority suggesting that subdivision (c) applies when the child is no longer living with the nonparent relative.
There is some confusion concerning where the child was living at the time the guardianship petition was heard. (See fn. 1, ante.) Even if the child was living with grandmother in a temporary guardianship at the time the petition for permanent guardianship was heard, we do not believe that section 3041, subdivision (c) is intended to encompass this situation.
Grandmother's argument that the court made a finding that grandmother was a person meeting the requirements of subdivision (c) is belied by the record. The court expressly found that "it would be inappropriate... to apply [section] 3041[, subdivisions] (d) and (c) of the Family Code." The court's comment on which grandmother relies--that grandmother "is the person that has some of the factors in 3041(c)"--was made after the court had made its formal findings in response to a question from grandmother's counsel. As grandmother was not a person coming within subdivision (c), the trial court correctly found that she had the burden of proving that granting custody to father would be detrimental to A.G. and that granting custody to her was required to serve the best interest of the child. (§ 3041, subd. (a).)
The trial court made extensive findings that A.G. was doing well in father's care, based on testimony from a number of witnesses. We do not reweigh the evidence. (See Guardianship of M. (1982) 136 Cal.App.3d 708, 711 ["We cannot reweigh the evidence; we must view the evidence in the light most favorable to the judgment, giving every reasonable inference which could be drawn from the evidence in support of the judgment"].)
The order is affirmed. Each party shall bear his or her own costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.