Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2009-00297959, Robert D. Monarch, Judge.
Patricia E. Anderson, in pro. per., for Plaintiff and Appellant.
No appearance for Objector and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Patricia Anderson appeals from an order appointing Jennica Anderson the legal guardian of her daughter, J. Jennica is J.’s stepmother, and the widow of J.’s father. J. has lived with Jennica – and with her father until his death in September of 2008 – since she was a young child.
The order applied to both J., and her sister, M., but as Patricia acknowledges, M. has since turned 18, and the order is consequently moot as to her.
Patricia articulates various complaints about the guardianship order, most of which are not cognizable here. For example, she claims the guardianship proceeding was “tainted” by improper rulings made in custody litigation between J.’s father and her back in 2001. However, the propriety of the court’s actions in that earlier custody case cannot be reviewed, a decade later, by way of appeal from a subsequent guardianship order. Patricia also asks us to (1) disregard evidence submitted by Jennica in support of the guardianship petition, because she allegedly “lied” and coerced J. and her sister, M., to do so as well; and (2) consider evidence which was not submitted to the trial court in connection with the guardianship petition. We can do neither.
The only cognizable arguments Patricia makes are (1) that the court appeared to be biased against her as revealed in ex parte communications with J., M., and Jennica’s counsel; and (2) that the court simply had no power to appoint a guardian for a minor whose parent has not been proven “unfit.” Neither is persuasive. As to the bias issue, the evidence relied upon by Patricia demonstrates, if anything, the opposite of her contention.
As to the claim her “unfitness” must be proved before a guardianship may be imposed, we note that a petition to establish a guardianship under the probate law is governed by different standards than a petition to establish dependency jurisdiction under the Welfare and Institutions Code. And the standard governing the former is a determination of the child’s best interests. Patricia has made no showing that the guardianship ordered for J. was not in her best interests. The order is affirmed.
FACTS
Patricia is the biological mother of both M. and J., now ages 18 and 16 respectively. In 2001, the family court awarded primary custody of both girls to their father, rather than to Patricia. The girls have resided with their father, and his second wife, Jennica, for most of their lives. In September of 2008, the girls’ father died. However, neither Jennica nor the girls informed Patricia of his death, and the girls continued to reside with Jennica.
When Patricia finally learned of her former husband’s death, she sought to gain custody of the girls. In response to that effort, Jennica petitioned the court in August of 2009, for an order appointing her the legal guardian of both M. and J. Although Jennica’s petition reflects it is supported by numerous declarations, including ones from herself, both daughters, Patricia’s second ex-husband, and a psychologist who has evaluated the daughters, only Jennica’s declaration is included in our record. Jennica’s declaration recites that Patricia has a history of engaging in physical violence with her daughters.
Patricia filed a response on August 26, 2009, in which she asserted her right, as the sole surviving parent, to take custody of her daughters, and expressed her objection to “any and all visitation or custody by Jennica....” In her response, Patricia also detailed the many ways in which she believed Jennica had tried to thwart her communications and attempts at visitation with her daughters.
On August 31, 2009, after speaking to both M. and J. in chambers, the court granted Jennica’s ex parte petition to be appointed M. and J.’s temporary guardian. The court set the matter for an evidentiary hearing.
The hearing took place on March 3rd and 4th of 2010. In addition to Patricia and Jennica, both M. and J. testified on the first day. Because Patricia represented herself in the proceeding, she personally cross-examined her daughters.
In their testimony, both girls expressed a desire to remain living with Jennica. M., then 17 years of age, stated that if the court ordered her to live with Patricia, she’d be “scared, ” and related an incident just prior to the filing of Jennica’s guardianship petition, in which she had chosen to try living with Patricia for a week. M. explained she had done so in the hope Patricia “might have changed, ” but things went very badly. M. related that when she ultimately decided she did not want to continue living with Patricia, she was physically restrained from leaving, and prevented from using the telephone. Ultimately, when M. insisted on leaving against Patricia’s wishes, the two of them got into a physical altercation, the police were called, and Patricia attempted to have M. admitted to a mental health facility.
M. explained that prior to that week, she had not spent any time with Patricia in five years. She acknowledged, under questioning by Patricia, that Patricia did make efforts to keep in touch by telephone, although sporadically – sometimes phoning repeatedly over a period of a couple of hours in a single night, and other times not making any attempts for weeks at a time. M. also agreed that Patricia wrote her letters and postcards, but M. stated that she threw those away without reading them. M. also described visiting her younger half-brother – Patricia’s son – approximately every other weekend, but on the weekends when his father (rather than Patricia) had custody. M. stated that she had passed up the opportunity to play water polo on an Olympic development team, because although she loved water polo, she was unwilling to do anything that involved Patricia.
M. also explained she had not told Patricia her father had passed away, because she “knew all of this, like chaos, was going to happen. [¶]... [¶] We are in a courtroom right now.”
J., then 15 years of age, testified she had lived with Jennica, and with her father until his death, “for as long as I can remember.” She stated that she didn’t think herself capable of leaving Jennica’s home, the same one they had lived in ever since J. was a young child. She acknowledged Patricia sometimes called on the telephone – “she calls like over and over all the time and at night really late” – but explained “I don’t want to talk to her.” Despite some rather intensive cross-examination by Patricia, J. testified that she remembered very little about spending time with Patricia.
On the second day of the hearing, Patricia was late arriving to court, and the court used that time as an opportunity to have a conversation with M. and J. about the things they had testified to the day before, including their feelings about both Patricia and Jennica. When Patricia finally arrived, the court excused both girls and resumed the formal hearing.
At the conclusion of the second day, the court announced it was granting Jennica’s request to be appointed the girls’ permanent guardian. The court then spoke to Patricia and Jennica together, encouraging them to work together more effectively in connection with their participation in the girls’ lives. Patricia asked the court to order M. and J. to participate in counseling with her, and while the court refused to issue such an order, it did offer to bring the girls in and encourage them to voluntarily participate, with Jennica as well, in such an endeavor. Patricia agreed with that, and when the girls were brought back into the courtroom, the court told them “I’ve made an order granting the request for a guardianship. However, it concerns the court for your sakes as young adults about to become adults... and having the rest of your life to live knowing that Patricia is your biological mother, and the danger that there will be a negativity that can adversely affect you.... [¶]... [¶] Your mother has her own style of communicating that you’re reacting badly to, for one reason or another. But if you get in this mode where there’s this party, this person, this professional who is educated in the way of enhancing communication, it can only help.... Would you agree?” They both agreed.
I
Initially, we must dispose of Patricia’s assertions the guardianship order must be reversed because: (1) the proceedings were “tainted” by errors made in the course of the earlier custody dispute between Patricia and her former husband; (2) Jennica’s petition was supported by her own lies and by misinformation she obtained through coercion of J. and her sister, M.; and (3) events since the guardianship was imposed demonstrate Jennica should not be entrusted with the care of J.
As to the first contention, we are simply unable to review alleged errors committed in a separate proceeding approximately a decade ago. To the contrary, we are obligated to presume those orders, which are long since final, were correct.
If Patricia believed the earlier custody orders were unsupported by sufficient evidence, or were the product of erroneous legal rulings, it was incumbent upon her to raise those issues in a direct appeal from the earlier orders, and to provide a complete record sufficient to allow review. She has done neither. Indeed, the only “record” of the custody proceedings she has provided to us consists of selective reproductions of certain documents which, if certified, might constitute evidence certain events occurred in the custody matter. However, divorced from any context, it would be impossible to construe those events as demonstrating error.
It is well settled that Courts of Appeal must “presume the trial court’s judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In service of that rule, we adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) [¶] It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) Thus, even if we could review the custody proceedings for error, the absence of any semblance of a complete record demonstrating what occurred therein – and why – would require us to adhere to the presumption no error occurred.
In any event, the point is moot. The death of Patricia’s former husband deprived the courts of any power to affect the custody arrangement which had existed between them. And to the extent the past custody arrangement (rightly or wrongly) has impacted the current relationships between J. and Jennica, and J. and Patricia, respectively, in a manner which affects the analysis of whether it would be in J.’s best interests to appoint Jennica as her guardian, nothing can be done about that at this point.
In determining whether to name Jennica as J.’s guardian, neither the probate court, nor this one, could ignore the fact that J. has actually lived with Jennica most of her life – even if Patricia were able to prove that it should have been otherwise. “It is this court’s duty ‘“to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it....”’ [Citations.]” (Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 921.) In this case, a determination J. and her sister should have been living primarily with Patricia, rather than their father and Jennica, for most of their lives, would not change the merits of the guardianship issue. Determining what’s best for J. must be based upon the current reality of her life, not a theoretical construct. Consequently, it would serve no purpose for us to express any opinion on the point. And thus we will not.
As for Patricia’s assertion that Jennica’s guardianship petition was supported by lies, and by misinformation coerced from J. and her sister, M., that is not a claim we are permitted to entertain on appeal. Determining the credibility of evidence, and the weight to be accorded it, is exclusively the province of the trial court, and we must defer to its judgments in that regard. “[T]he testimony of a witness whom the trier of fact believes, whether contradicted or uncontradicted, is substantial evidence, and we must defer to the trial court’s determination that these witnesses were credible. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614....)” (Estate of Odian (2006) 145 Cal.App.4th 152, 168.) “[T]he applicable standards of appellate review of a judgment based on affidavits or declarations are the same as for a judgment following oral testimony: We must accept the trial court’s resolution of disputed facts when supported by substantial evidence; we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of credibility of the witnesses and the weight of the evidence. (Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501.)” (Betz v. Pankow (1993) 16 Cal.App.4th 919, 923.)
Finally, we must also ignore Patricia’s claims regarding events which have allegedly occurred since the court issued its order imposing the guardianship. An appellate court must confine its review to matters before the trial court at the time it rendered its challenged decision. “[A]n appellate court generally is not the forum in which to develop an additional factual record.” (People v. Peevy (1998) 17 Cal.4th 1184, 1207.) “Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally ‘when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.’” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
We now turn to the claims we can consider.
II
Patricia first complains that the court which imposed the guardianship over J. was “biased” against her, based upon comments made by the court to her daughters while everyone was waiting for Patricia’s late arrival on the second day of the evidentiary hearing. To put that discussion in context, it followed a day in which both daughters had testified, both expressed a desire to remain living with Jennica, and both withstood extended cross-examination by Patricia. M. stated that if the court ordered her to live with Patricia, she’d be “scared, ” and related the recent incident in which she had tried living with Patricia for a week, and it culminated in a physical altercation, the police being called, and Patricia trying to have M. admitted to a mental health facility.
With that in mind, here’s what happened: The court first greeted the daughters, and told them “I wanted to speak with you while we’re waiting for everybody to appear. And I don’t want anybody else to contribute, I just want to talk to each of you.” The court went on to compliment the girls as “nice, intelligent, great kids and doing the best you can under extremely stressful circumstances.”
The court then related to the girls its “impression as to what’s going on so far from the standpoint of your biological mother Pat[ricia]. As the court sees it, and relative to the hundreds of cases this court has seen over the last umpteen years, she is a very smart woman, she’s very articulate.... She has her own sense, as we all do, of what’s right and what’s wrong and what’s best for the people we love. And there’s little question in my mind that in her own way she loves each of you very much. Would that be a fair observation, as far as you’re concerned?” J. said “No.”
At that point, Jennica’s attorney, Brian Saylin, entered the courtroom, and the court explained its intention to speak with the girls without input from anyone else. Saylin agreed to “be the proverbial potted plant.” M., J, ’s older sister, then told the court “I think that [Patricia] loves us, I don’t think she knows how to love anybody like with a mental, a normal mental state.”
The court then responded with the statements that Patricia finds most offensive: “Okay. I think we’re on the same page. Now, it doesn’t make her love, the way she manifests it, any less sincere. I mean, she really feels that way, but she behaves in a way that you perceive as bizarre and extraordinary and even obnoxious or toxic. It’s inconsistent with your perception of love.” M. then responded by pointing out “Yes. But I also think that – I mean, she has a lawyer for the money, but she doesn’t have a lawyer for her kids. Are we just a paycheck to her or?” The court characterized M.’s comment as an “interesting observation, ” and then pointed out that M. has expressed “that observation with respect to your step mom, too.” The court went on to note that Jennica too, has “shown love in her way which includes discipline that sometimes is reacted to negatively.” M. agreed.
In the course of additional colloquy, the court described Patricia as “very smart, ” as concerned about “what [she] perceive[s] to be best for [her daughters], ” and as “very thorough and candid.” The court then expressed the belief it would be a “tragedy” to “lose a relationship as significant as a relationship between a biological parent and child.” To that, M. replied “[s]he hasn’t been a part of my life as like a motherly figure in a long, long, long time. And even then there was a ton of problems.” M. also commented “I was thinking to myself, I was like, okay, anybody can have a baby, but it takes more than just giving birth to be a mother.” J. then concurred: “Biological is just a word.”
After some additional back and forth, the court pointed out that “Pat[ricia] does manifest an intensity. But again you may disagree, but it’s basically a sincere intensity, even though it’s misapplied and her communication skills, when it comes to you, are lacking. She’s not successful, obviously, as a function of your reaction.” Both M. and J. rejected the notion that Patricia is their “mom.” Instead, they identified Jennica, who as always “been there, ” as their true mother.
The court then noted that M. has actually expressed fairly negative impressions of “everybody, ” not just Patricia, although it notes that such a reaction can be characterized as just a normal part of being a teenager: “I mean, teen-agers, I’ve had seven of them, a few of them Mr. Saylin has met, and it’s the nature of growing up and the proposition that you reach a certain age, and hormones and everything, and you are smarter than everybody else until you get a little bit older.”
M. asked the court what would happen if Patricia did not show up for the day’s proceedings. The court told her it expected Patricia to be there, indicating she had contacted the court and “said she was about 20 minutes out.” When M. responded by inquiring “That’s how important this is to her?, ” the court defended Patricia: “She’s trying to perhaps at least subconsciously delay the inevitable, as she describes it or she perceives it.... And I want to give her an opportunity to have her say and will continue to give her an opportunity to have her say.” M. inquired: “Even if her say is not true?” The court then responded that “truth is in the eye of the beholder... [¶]... [¶] So we do the best we can, and most of us lean in the direction of giving everybody the benefit of the doubt and try to make a determination in a matter of this nature relative to best interests, best we can, in light of everybody’s truth” whereupon Patricia entered the courtroom.
The court immediately informed Patricia of what it had been doing: “What I’m doing, while we’re waiting for you, is talking to the girls without anyone else interrupting me so that I could further the court’s interaction with them to get a reaction from them based upon what I’ve seen and heard so far.” The court then offered to bring Patricia “up-to-date with respect to what I’ve learned from them, in this new session, if you wish.” Patricia stated she certainly wished to hear what the court had learned, but also to register her objection to the discussion taking place in her absence. The court stated that her objection would be reflected in the record, and then related to her that it had “suggested to [the girls] that aside from how they might perceive you, that in your way you love them very much. Bottom line is, they agreed that that was the case. And that was ultimately my purpose, to see if they could rise to that recognition.”
Patricia has two complaints arising out of the court’s conversation with her daughters. First, she contents the court acted improperly by engaging her daughters in a conversation designed to explore their feelings about her while she was not present. She’s absolutely right. The court should not have done that.
Under the Code of Judicial Ethics, “[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as follows: [¶]... [¶] (d) A judge may initiate ex parte communications, where circumstances require, for scheduling, administrative purposes, or emergencies that do not deal with substantive matters provided: [¶] (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and [¶] (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.” (Cal. Code Jud. Ethics, canon 3B(7)(d).)
Obviously, the feelings and desires of these two girls, who are both of an age where their own preferences would weigh heavily in resolving the disputed issue about where they will live (Fam. Code, § 3042), was a substantive matter – it should not have been explored by the court without both sides being present.
However, on the record in this case, we cannot conclude the error demonstrated bias against Patricia, or that it was harmful. At the time the court spoke with the M. and J., both had already expressed their clear desire to live with Jennica – J. went so far as to say she would be unable to leave – and both she and M. had openly expressed hostility toward Patricia. The court’s colloquy with the girls on the following day certainly did not plant those ideas in their heads. Nor did it foster any hostility toward her. To the contrary, a fair reading of the transcript reveals that what the court did is exactly what it told Patricia it had done – essentially encourage the girls to get past their anger at Patricia’s actions, and acknowledge that she loved them. The court went out of its way to emphasize the importance of the relationship between a child and a biological mother, and to remind the girls they also had complaints about Jennica.
Nothing in this exchange suggests the court was biased against Patricia, nor does it provide any basis to infer the court put negative ideas about Patricia into her daughters’ heads. In any event, as our Supreme Court has recently explained: the mere “appearance” of bias is not sufficient to justify reversal of an order or judgment. (People v. Freeman (2010) 47 Cal.4th 993.) “Where only the appearance of bias is at issue, a litigant's recourse is to seek disqualification under state disqualification statutes: ‘Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution.’” (Id. at p. 996, quoting Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. ___, 129 S.Ct. 2252, 2267.) In this case, Patricia did not seek to disqualify the judge after learning he had spoken to her daughters outside her presence, she simply registered an objection to it. Hence, she waived her applicable remedy.
Patricia also complains, separately, about the court’s comment – in the context of discussing teen-aged behavior, that “Mr. Saylin [referring to Jennica’s counsel] has met” several of the judge’s own children. Patricia characterizes this reference as evidencing a “relationship with Opposing Counsel, ” which she presumes was so significant that it affected the court’s ability to be impartial. We don’t see it that way. In our view, the fact that Saylin has had occasion to meet some of the judge’s children – but not even to meet all of them – does not suggest any close relationship. Instead, it suggests something more akin to “our kids played on the same sports teams.” Or, “they went to the same school.”
In any event, even if this comment created the appearance of bias, Patricia’s remedy was to seek disqualification of the judge. Nothing in this case rises to the level of bias necessary to support a due process violation. “[T]he due process clause should not be routinely invoked as a ground for judicial disqualification. Rather, it is the exceptional case presenting extreme facts where a due process violation will be found.” (People v. Freeman, supra, 47 Cal.App.4th, at p. 1005.) This is not that exceptional case.
We conclude the average person would not entertain such doubts here. Consequently, the court’s alleged bias does not provide any basis for reversal.
III
Patricia’s final argument – in a nutshell – is that she is simply entitled, as sole surviving biological parent, to take custody of J. As she explains, “[a] stepparent’s visitation rights are secondary to a ‘birth parent’ custody or visitation rights.” Patricia contends that unless the court affirmatively finds that she, Patricia, is “detrimental” to J., it is obligated to restore custody of J. to her. In Patricia’s view, the “mere change in residence” which would be associated with restoring J. to her custody is not sufficient to establish detriment to J.
Patricia is incorrect. This case involves a petition to establish a guardianship under provisions of the Probate Code. As our Supreme Court recently explained, the standards which govern such cases differ significantly from those in dependency cases: “After the passage of the juvenile dependency statutes, probate guardianships have continued to provide an alternative placement for children who cannot safely remain with their parents. [Citation.] The differences between probate guardianships and dependency proceedings are significant. [Citation.] Probate guardianships are not initiated by the state, but by private parties, typically family members. They do not entail proof of specific statutory grounds demonstrating substantial risk of harm to the child, as is required in dependency proceedings. [Citations.] Unlike dependency cases, they are not regularly supervised by the court and a social services agency. No governmental entity is a party to the proceedings. It is the family members and the guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited, or the guardianship continued, or an adoption sought under [Probate Code] section 1516.5.” (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1122.)
As the court further noted: “Early authorities held that in contested guardianship cases, parents were entitled to retain custody unless affirmatively found unfit. (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate, § 928, pp. 1031-1032, citing cases.) However, the unfitness standard fell out of favor and the best interest of the child, as determined under the custody statutes, became the controlling consideration. (In re B.G. (1974) 11 Cal.3d 679, 694-698; Guardianship of Marino (1973) 30 Cal.App.3d 952, 957-958.) The Probate Code now specifies that the appointment of a guardian is governed by the Family Code chapters beginning with sections 3020 and 3040. (Prob. Code, § 1514, subd. (b).)” (Guardianship of Ann S., supra, 45 Cal.4th at pp. 1122-1123.)
Family Code section 3020, subdivision (a) provides: “The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children....” Family Code section 3040, subdivision (b) provides that while parents are first in the order of preference for a grant of custody, “the court and the family” are allowed “the widest discretion to choose a parenting plan that is in the best interest of the child.”
Moreover, “[i]n 2002, the Legislature added subdivisions to Family Code section 3041 emphasizing the importance of a stable home environment for the child. (Stats. 2002, ch. 1118, § 3.) It specified that ‘“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, 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. A finding of detriment does not require any finding of unfitness of the parents.’ (Fam. Code, § 3041, subd. (c).) And, ‘if the court finds by a preponderance of the evidence that the person to whom custody may be given is [the person who has assumed, on a day-to-day basis, the role of parent], this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary.’ (Fam. Code, § 3041, subd. (d).) Thus, the Legislature has determined that the critical finding of detriment to the child does not necessarily turn on parental unfitness. It may be based on the prospect that a successful, established custodial arrangement would be disrupted. (See Guardianship of L.V.[(2006)] 136 Cal.App.4th [481, ] 491.)” (Guardianship of Ann S., supra, 45 Cal.4th at p. 1123.)
Moreover, as explained in Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, an order appointing a nonparent guardian of a child does not violate the constitutional right of the parent – unlike the determination of parental unfitness in a dependency case, a guardianship order is not simply the first step down the road toward termination of parental rights. Instead, a guardianship order is based upon the recognition that children have their own distinct interests which are deserving of protection: “‘California recognizes the principle that children are not merely chattels belonging to their parents, but rather have fundamental interests of their own. [Citation.] Such fundamental interests are of constitutional dimension.”’ (Id. at p. 64, quoting In re Bridget R. (1996) 41 Cal.App.4th 1483, 1490 [Bridget R. superceded in part by statute on another point].) And where the interests of a child conflict with those of a parent, it is the child whose interests must prevail: “‘[A]s a matter of simple common sense, the rights of children in their family relationships are at least as fundamental and compelling as those of their parents. If anything, children’s familial rights are more compelling than adults’, because children’s interests in family relationships comprise more than the emotional and social interests which adults have in family life; children’s interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each child’s mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring. [Citation.] [¶] Cases which hold that deference is to be accorded to parental rights do so in part on the assumption that children’s needs generally are best met by helping parents achieve their interests. [Citations.] In some situations, however, children’s and parents’ rights conflict, and in these situations, the legal system traditionally protects the child.’” (Guardianship of Zachary H., supra, 73 Cal.App.4th at p. 64, quoting In re Bridget R., supra, 41 Cal.App.4th at p. 1504.)
As these authorities make clear, a “mere change in residence, ” for a child who has enjoyed a long-term stable placement with one who is not her biological parent, can, in and of itself, constitute sufficient “detriment” to justify an order awarding custody to the nonparent – even if the available parent is not unfit. Thus, the fact that 15-year-old J. has resided with Jennica for nearly her entire life, and that she wishes to remain with Jennica, is a sufficient basis to support the establishment of the guardianship in this case – a guardianship which allows J. to remain in Jennica’s custody.
We acknowledge Patricia asserts that J.’s true feelings are other than what she testified to. Patricia claims that Jennica has subjected both M. and J. to “duress and pressure, ” in an effort to distance them from her. She characterizes Jennica as “an emotional abuser” and claims Jennica threatened the girls with the loss of their inheritance, and the loss of all contact with their half-brothers, if they chose to be with Patricia. None of those assertions can be considered on appeal. Neither girl testified to any such thing, and both explicitly denied that Jennica had tried to keep them away from Patricia, or to prevent them from speaking with her. It was the job of the trial court to assess credibility, and we must presume it disbelieved Patricia’s contentions in these regards.
And while Patricia argues she has a “bond” with J., which distinguishes her case from Guardianship of Zachary H., supra, 73 Cal.App.4th 51, and Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, the evidence doesn’t support it. It is essentially undisputed that Jennica has been the one who handled the day-to-day parenting care of J. since she was very young. What Patricia characterizes as her “bond” with J. is the fact that Patricia “never gave... up” her fight for custody, and “never walked away or abandoned my children.” That may be true, but it’s beside the point. The parental “bond” which is relevant here is not simply an absence of abandonment. It refers to the emotional attachment which is formed between a child and a person who cares for her on a day-to-day basis, providing her with love, support and nurturing. The trial court found it was Jennica, and not Patricia, who had fulfilled that role for J. The evidence was more than sufficient to support that conclusion.
The order is affirmed.
WE CONCUR: O’LEARY, J. ARONSON, J.