Opinion
C084664
04-20-2018
Guardianship of the Persons and Estates of R.E.W. III et al., Minors R.E.W. II, Petitioner and Appellant, v. M.A., as Guardian, etc., Objector and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 34201400160244)
When appellant, R.E.W. II, father, and S.A., mother, ended their relationship in 2005, father moved to Ohio and mother and the couple's two children stayed in Sacramento with M.A., the maternal grandmother. In 2014, the probate court established a guardianship over the children and it named the maternal grandmother as their guardian (Guardian). In 2015, father petitioned to terminate the guardianship so he could move the children to Ohio. The probate court denied the petition.
Before us, father contends the probate court abused its discretion when it denied his petition. He asserts (1) the court did not consider evidence that mother used illegal drugs while living with Guardian and the children, she shared a bed with her daughter, the probate investigator recommended terminating the guardianship, and the son was failing in school; and (2) the court abused its discretion by allowing the son to testify in chambers even though he had already prepared written testimony and spoken with the investigator.
We conclude the probate court did not abuse its discretion and we affirm its ruling. As our summary of the facts will show, the court considered all of the evidence father claims it ignored, and it acted within its discretion when it allowed the son to testify in chambers.
FACTS
A.
Family Conditions
Mother and father met in 1997 and lived together until 2005. They never married. They had two children: a son born in 2000, and a daughter, born in 2006. In 2006, father was convicted in California of soliciting a prostitute.
Father moved to Ohio in late 2006. He moved there to have the support of his family as he got back on his feet. He had a low-paying job in California and was struggling to make ends meet. He did not take the children with him because he did not have the ability to care for them on his own, and he knew mother had family who would care for them. He also moved to Ohio because there was arguing between him and Guardian, with whom mother and the children lived, and he did not want the children to see that. He and mother were trying to reconcile, and he hoped she and the children would move to Ohio to be with him. That did not happen, and eventually mother prevented father from communication with the children.
B.
Petition for Guardianship
In 2014, Guardian petitioned for guardianship of the children. She claimed the guardianship was necessary for a number of reasons. The children needed routine medical care. They did not receive financial assistance from mother because mother used and abused drugs. Mother was unemployed because she abandoned her work. She used the child support money she received for her own use. Guardian also stated mother was homeless, she neglected the children, and she exposed them to dangerous situations. Father was not involved physically, but he called from time to time. Guardian had cared for the children since the daughter was born and provided stability, shelter, and food.
Father objected to the guardianship. He claimed he had a stable job and a home for the children in Ohio where he could care for them.
The trial court granted the guardianship.
C.
Petition to Terminate Guardianship
In 2015, father petitioned to terminate the guardianship. In his supporting declaration, he stated he was "back on [his] feet," and he and his children had rebuilt their relationship. They had enjoyed two extended visits in Ohio, and they frequently communicated via e-mail, phone, and video-conferencing. Because mother, to his knowledge, was transient and abusing substances, he proposed the children move to Ohio and live with him.
D.
Hearing on Petition to Terminate
1. Father
At a hearing on his petition to terminate the guardianship, father stated he is employed full-time as a welder fabricator and part-time as a firefighter. He passed an FBI background check to be a firefighter. He has never failed a random drug test and does not use drugs or illegal substances. Other than his 2006 California conviction, he has not been arrested or convicted in California or Ohio.
Father lives in Ohio with his parents in a four-bedroom, two and one-half bath house on one-half acre. When the children visit there, they have their own bedrooms. If awarded custody, he planned to live with his parents for one more year and then move with his children into their own house. He does not drink often. He has about one day off of work each week, and he will have a couple of beers then.
Father's parents would care for the children when he is at work, as they did when the children visited him. His parents are retired from the Air Force and have no criminal background. Father is willing to reduce his work schedule in order to have more time to be with the children. If granted custody, he would help get the children ready in the morning before going to work. The school bus stop is in front of his parents' home, and the schools are good.
Father believes he is capable of caring for the children. The children had a good time when they visited him in Ohio. They went camping, explored a cave, attended an air show, visited a museum, went boating and fishing, and went to movies, dinners, and lunches. To help the children transition to living with him, he would have the family, including his parents, receive counseling.
Father said he is financially able to provide for the children. His gross monthly income is about $2,000. He is open to flexible visitation, including having the children visit mother in California, and he would encourage them to have regular contact with her. Based on his income, however, it would be difficult for him to pay for the children's transportation to and from California.
Under questioning by the court, father stated he never filed an action for custody of the children because he thought he and mother had worked out the necessary arrangements. When those arrangements failed, he did not think about using the court system.
Father's relationship with Guardian is fair. He does not speak with mother because he thought she was homeless.
Father has no other family in Ohio besides his parents. As of the hearing date, he had not obtained health insurance.
2. Probate Investigator
Robin Pearl, a probate court investigator, recommended the court terminate the guardianship. Pearl stated this dispute was really a custody fight. She did not believe the guardianship was necessary, nor did she think it was working as it should.
Pearl investigated father's petition and filed a report that was admitted into evidence. She questioned the need for the guardianship. Guardian told Pearl she sought the guardianship because mother worked a lot of hours. When confronted with the allegations in her original petition, Guardian said they were not true and there must have been a miscommunication. She said she never indicated mother had a drug issue. Mother, too, did not tell Pearl about any substance abuse issues she may have had. Pearl thought if mother was living in the home and not a danger to the children, she was available to care for them and the guardianship was unnecessary. If mother was a danger, she should not be living in the home.
The daughter was doing well in school, but the son was not. Pearl thought the guardianship was not working in part because the son was not in tutoring, even though the social worker at the time the guardianship was granted said she would help get him access to tutoring. Guardian did not seem to be aware of the son's difficulty at school. She said it was father's fault the son was struggling because he made the children go to Ohio the past summer, causing the son to miss summer school. Guardian had tried to stop that visit but, as Pearl reminded her, Guardian did not allege the son's need for summer school as a reason for preventing the visit.
The children told Pearl they felt safe with Guardian and father. They said it would be "kind of cool" to live in Ohio, but they also liked Sacramento. They had a lot of fun in Ohio, but they would miss their family here.
3. Mother
Mother had lived with Guardian all her life. Currently, she and the two children share Guardian's home with mother's brother. The house has three bedrooms. The daughter shares a bed and a bedroom with mother, the son shares a bedroom with mother's brother, and Guardian has her own room. Mother's brother is 22 years old and does not have any substance abuse issues. After father moved to Ohio, mother and Guardian provided the day-to-day parenting of the children and served as their primary caretakers.
Mother has struggled with alcohol and drug abuse. She had a drinking problem from 2007 to 2012. She no longer drinks. Her drug problem started in 2004 when father gave her methamphetamine at her request. She used drugs once or twice a week, but was clean in 2007 and 2012. She relapsed in 2016, three months before the hearing on father's petition to terminate the guardianship, and she stopped using methamphetamine about two and one-half weeks before the hearing. She was tested the day before the hearing and the results were negative. She has struggled with sobriety. She has not used methamphetamine when the children were present, and the children have not seen her use it. However, when she was using, and after she relapsed, she still came home every night and shared a bed with the daughter. She agreed she was not a good role model for her children if she used drugs. She said, "There is nothing good about it. . . . It's done nothing good."
Mother was a victim of domestic violence by father in 2004. He threw her across the room. Once, he put his hands around her throat and choked her, and the son saw it. She did not report this to the police.
Mother said Guardian took guardianship of the children in 2014 because she was not around in the daytime. She was trying to find work and a boyfriend. She still went to Guardian's home on a daily basis to wake up the children and get them ready. She has never been homeless.
Mother believes her parenting has improved since 2014, and she is providing day-to-day parenting for both children. She is active in the children's school activities and conferences. The daughter is doing well in school; the son is struggling. The daughter would start fifth grade in fall of 2016 at the school where she has always attended and has friends. The son went to summer school in 2016 and would be a junior in high school that fall. He is a very good soccer player, and was on the school's varsity soccer team as a freshman.
Mother finds work "here or there" helping friends around their houses or landscaping. She worked at Golden 1 from 2007 to 2012. Responding to the court's question, she stated she quit Golden 1 due to emotional problems. She thinks she has depression, although she does not see a counselor. She believes she self-medicated by using methamphetamine to make herself feel better.
The trial court asked mother about her drug use. She understood she was using methamphetamine during the pendency of a court hearing where the court was going to decide where her children would live. She understood that being clean for only two and one-half weeks was not a long time. She was willing to get treatment and thought she needed treatment. She understood using drugs could impact her children.
4. Guardian
Guardian is 61 years old and in good health. She owns her home and has lived there for 35 years. She has 8 children, all of whom live in Sacramento, and 18 grandchildren. Her income consists of Workers' Compensation, government aid, aid from her adult children, and child support from father.
She wanted to become the guardian in 2014 because father had abandoned the children and their mother was failing. Because the children had always been with her, she needed to continue protecting them. She is an excellent cook. When mother was home, mother would look after the children.
Guardian said she did not know mother was using drugs, but she did know mother was having difficulty with alcohol. As far as Guardian knew, mother never used methamphetamine at home. She did not know mother had relapsed.
Guardian did not remember saying in her guardianship petition that guardianship was necessary because mother used drugs or was homeless, even though in a declaration filed in 2015, Guardian said both mother and father were irresponsible and chronic substance abusers.
The court asked Guardian what she thought when she heard mother testify she used methamphetamine two weeks prior. Guardian thought "[t]hat it's very bad" and it makes her concerned about the children if mother is using drugs.
5. Mother's sister
Mother's sister testified her children are about the same age as mother's, and the families are together often. Despite initially denying it on cross-examination, she admitted on redirect that she and Guardian were aware mother had recently relapsed, and they were trying to support her.
6. The son and daughter
The son and daughter submitted letters to the court saying they wanted to live in Sacramento. The son also testified in chambers at his request. He said he really wanted to live in Sacramento. He has lived here all his life, and he feels more comfortable here, likes it better here, has all of his friends here, and likes where he is going to school. He had "not really" talked to his dad about his desire to stay and was worried about hurting his feelings. He enjoyed his visits to Ohio. No one told him what to say to the court.
E.
Trial Court's Ruling
The trial court denied the petition to terminate the guardianship. Weighing the evidence before it, it concluded father had not proven by a preponderance of the evidence that terminating the guardianship was in the children's best interest. The guardianship was granted because mother was not able to be a parent, and she still was not able to be one. The court was very concerned about mother's problems, and it also believed Guardian was in denial about mother's need for treatment. The court said father was a good dad and was stable, but the fitness of a parent to assume custody is not the controlling consideration.
The court considered the emotional disruption that would be caused by moving the children. The children had been in a stable environment and had developed a bond with Guardian. Guardian had taken care of the daughter all of her life and the son for a good amount of his life. Also, the children had extended family in Sacramento that provided a support system, and they had a relationship with mother.
The children were in a permanent, stable, and loving environment with Guardian, and they would be in a loving environment with father. But the court ruled father had not shown it was in the children's best interest to terminate the guardianship. Some of father's decisions had handicapped him. He had moved to Ohio hoping the family would follow, and they did not, resulting in a significant time when he was not a dad.
DISCUSSION
Father contends the probate court abused its discretion when it denied his petition to terminate the guardianship. He argues the court did not consider evidence that, in his opinion, indicated the guardianship was not in the children's best interests: mother used drugs while living with the children, she shared a bed with the daughter, the son was failing in school, and the probate investigator recommended the guardianship be terminated. Father also asserts the court erred when it allowed the son to testify in chambers after he had already prepared written testimony and spoken with the probate investigator. Father's contentions have no merit.
The probate court may terminate a guardianship if it "determines that it is in the ward's best interest to terminate the guardianship." (Prob. Code, § 1601.) The best interest of the minor "is the sole criterion" for terminating a probate guardianship. (Guardianship of A.L. (2014) 228 Cal.App.4th 257, 268.) "The decision whether to terminate a guardianship is committed to the sound discretion of the trial court. (Prob. Code, § 1601; Guardianship of Stephen G. (1995) 40 Cal.App.4th 1418, 1426.) It is an inquiry that is particularly founded on application of the trial court's experience with human conduct. Thus, when the trial court applies the appropriate legal standard, its determination is subject to deferential review on appeal. [Citations.]" (Guardianship of L.V. (2006) 136 Cal.App.4th 481, 488.) We look only for clear error or abuse of discretion. (See In re J.D. (2013) 219 Cal.App.4th 1379, 1392.)
As we showed above, the record indicates the probate court considered all of the evidence presented to it, including the evidence father claims it did not consider. That the court, after considering the evidence, did not agree with father's position does not mean the court abused its discretion.
Father singles out the evidence most favorable to himself, "in disregard of contrary evidence. This is inappropriate." (Guardianship of L.V., supra, 136 Cal.App.4th at p. 488.) A trial court determining what custody arrangement serves a child's best interest exercises its broad discretion "in light of all the circumstances . . . ." (Marriage of Burgess (1996) 13 Cal.4th 25, 34, [review of trial court's custody award].)
Viewed as a whole, the evidence indicates the probate court did not abuse its discretion. The court concluded maintaining the guardianship was in the children's best interest in large part because the children had been in a stable relationship with Guardian for most, if not all, of their lives, and they had developed strong bonds with her and their extended family in Sacramento. Stability is a fundamental concern when considering a child's best interests. "In substantive family law, stability and continuity in a child's living arrangement are so important in themselves that there must be a 'persuasive showing of changed circumstances affecting the child' to overcome the disruption necessarily inherent in any change of custody. [Citations.]" (Guardianship of Kassandra H. (1998) 64 Cal.App.4th 1228, 1239.)
Moreover, the probate court considered the evidence father claims it ignored. The court considered the evidence showing mother was using illegal drugs. Indeed, the court asked mother questions specifically on that topic. From this evidence, the court concluded mother was still not fit to be a parent. But mother was not the guardian, and the court considered this evidence in light of the other evidence showing the children were in a stable relationship with Guardian who was providing for their needs.
The court knew mother and the daughter were sleeping in the same bed and the son was performing poorly in school. While these points in isolation may raise some concern, there is no evidence the court did not consider them as part of considering all of the circumstances to determine the children's best interests. Additionally, the two points do not necessarily establish terminating the guardianship is in the children's best interests. Mother testified she never used drugs around her children, and there was no evidence the daughter was harmed by sleeping in the same bed with her mother. The son had incentive to improve his school performance if he wanted to continue playing soccer for the school team, and resources were to be made available to him to do so. There is no evidence that moving him to Ohio to attend a different school would likely result in better grades.
The court also considered the probate investigator's report. It heard her testimony and admitted her report into evidence. It considered her opinion in light of the other evidence presented at trial.
The probate court also did not abuse its discretion when it determined to have the son testify in chambers. As father acknowledges, the son requested to testify, and Family Code section 3402 authorized him to testify because he was over 14 years of age and so long as the court did not determine testifying was not in the son's best interest. Father contends it was not in the son's best interest to testify because testifying pitted the son between mother and father, as he was forced to walk through the courtroom in order to speak with the judge, and the court had already learned the son's preference from his letter and from the probate investigator.
The son's response to the investigator was equivocal. According to the investigator, both children "said it would be kind of cool to live in Ohio, but they also liked Sacramento." The investigator also stated it was clear one or both sides had talked to the children. By allowing the son to testify in chambers, the court provided itself the opportunity to learn his true desires. The court did not abuse its discretion in seeking this evidence.
When we review for an abuse of discretion, a "showing on appeal is wholly insufficient if it presents a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice." (Brown v. Newby (1940) 39 Cal.App.2d 615, 618.) Father did not make that showing.
DISPOSITION
The probate court's order denying R.E.W. II's petition to terminate the guardianship is affirmed. Costs on appeal are awarded to Guardian, M.A. (Cal. Rules of Court, rule 8.278(a).)
/s/_________
HOCH, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
MAURO, J.