Opinion
B161178.
7-8-2003
In re the GUARDIANSHIP OF SOPHIA V.; MAUREEN V., Petitioner and Appellant, v. DONALD V. et al., Objectors and Respondents.
Law Offices of Randy E. Bendel and Randy E. Bendel for Appellant. Law Offices of Eugene R. Salmonsen and Eugene R. Salmonsen for Respondent Jennifer DeLeo. Law Offices of David M. Livingston and David M. Livingston for Respondent Donald Edward Veto IV.
Appellant challenges an order of the Probate Department of the Los Angeles Superior Court denying her guardianship petition without prejudice on the ground the issues raised were properly litigated in a pending family law case. We hold the Probate Department abused its discretion in denying appellants petition for guardianship without initiating a process to transfer the matter to the Family Law Department.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Maureen V. petitioned the Probate Department under Probate Code section 1510 on March 29, 2002, for appointment as guardian of her three-year-old niece, Sophia V. She claimed Sophia lived with her, and she paid Sophias living, educational and medical expenses. She also asserted that Sophias parents, respondents Jennifer D. and Donald V., failed to demonstrate the ability to maintain a caring and nurturing home for Sophia. Sophias mother, Jennifer, opposed the guardianship petition on the ground that Maureen failed to demonstrate any detriment to Sophia if she continued to reside with Jennifer. Contrary to Maureens assertions, Jennifer contended she provided Sophia a well-balanced life, with a loving home and many social activities. She also contended she allowed Maureen to pay Sophias expenses due to Donalds refusal to provide child support.
On May 1, 2002, Jennifer filed a petition in the Family Law Department under Family Code section 7630 to establish that Donald was Sophias father and to receive child support from him.
The Probate Department heard appellants guardianship petition on August 14, 2002. Maureen and her counsel were present at the hearing; Jennifer appeared through her counsel. The court read and considered the probate investigation report. Maureen indicated she had filed a request for an evidentiary hearing and requested a right to cross-examine the probate investigator who prepared the report. The court denied the request without prejudice.
The Probate Department expressed the view the "matter should be resolved in Family Law Department. [P] Probate is only to be used where you dont have a parent who is able to take care of the child. As long as youve got two parents, whether one is recommending that the child be taken care of by somebody else or not, Im not going to take a family law case away. [P] . . . [P] The same issues can be litigated in the family law case. Its not going to be litigated in two different places." Due to the pending family law case, the court denied appellants petition without prejudice. It further denied appellants request for a statement of decision.
Appellant filed her appeal from the Probate Department order on August 21, 2002. Appellant contends the Probate Department erred by denying her request to cross-examine the probate investigator and to present live testimony, denying her request for a statement of decision, and failing to transfer the matter to the Family Law Department following the denial of the guardianship petition.
STANDARD OF REVIEW
The standard of appellate review in guardianship orders is the deferential abuse of discretion test. (Guardianship of Morris (1951) 107 Cal. App. 2d 758, 237 P.2d 989.) The appointment of a guardian for a child lies within the sound discretion of the Probate Department, and the conclusion reached will not be disturbed on appeal absent a showing of abuse of discretion. (Morris, supra, 107 Cal. App. 3d 762-763.) The issue is whether the Probate Department abused its discretion in denying appellants petition for guardianship without initiating a process to transfer the matter to the Family Law Department where Jennifers petition to establish paternity was pending.
DISCUSSION
Prior to January 1, 1994, custody issues pertaining to the same child were often litigated in various departments of the Los Angeles Superior Court. Multiple court proceedings served to increase the trauma to children, the inconvenience to witnesses, the cost to the parties, the burden on the court system, and the risk of inconsistent judicial decisions.
To address the myriad problems inherent in multiple child custody proceedings, the superior court adopted rule 2.6, which became effective January 1, 1994. (See Super. Ct. L.A. County, Local Rules, rule 2.6.) The rule declares, as a matter of court policy, that the best interests of the child, the litigants and the court are promoted by the early identification and coordination of custody proceedings involving the same child. (Ibid.) Toward that end, under rule 2.6(a), all superior court departments involved in custody issues are required to cooperate to eliminate multiple child custody proceedings, and whenever possible, proceedings are required to be conducted in a single department. As defined by the rule, custody proceedings encompass such matters as petitions for guardianship (Prob. Code § 1510) and petitions to establish paternity (Family Code § 7630).
While rule 2.6 did not preclude the Probate Department from addressing the merits of appellants petition, the court did not do so. When appellants matter was called for hearing on August 14, 2002, the court did not permit appellant to present evidence, and declined to entertain argument. The court simply observed there was a pending family law proceeding and stated the issues raised by appellants petition were properly litigated in the Family Law Department rather than the Probate Department. At that point, the court denied appellants petition without prejudice.
When the Probate Department declined to consider the merits of appellants petition owing to the pending family law matter, rule 2.6 compelled the court to invoke the coordination procedures specified in the rule in order to afford appellant an opportunity to adjudicate the issues asserted in her guardianship petition. The courts denial of appellants petition without prejudice substantially prejudiced her ability to assert her interests. Following the courts order, the procedural avenues available to her were limited to filing a notice of motion and declaration of joinder in the pending family law case, where the issues were not identical to those asserted in the guardianship petition, and to a subsequent refiling of her petition for guardianship. On the other hand, the Probate Departments adherence to the procedural requirements of rule 2.6 could have permitted the transfer of appellants guardianship matter to the Family Law Department, which, in a coordinated or consolidated proceeding, could have heard both the family law and guardianship issues in a single department, ensuring the timely and full adjudication of those issues.
Under the circumstances, we conclude the Probate Department abused its discretion in denying appellants petition for guardianship without invoking the rule 2.6 procedures for the purpose of initiating coordination proceedings involving the same child.
DISPOSITION
The order denying appellants petition for guardianship without prejudice is reversed. The cause is remanded to the Probate Department with directions to determine the petition on the merits or, alternatively, to initiate coordination proceedings consistent with rule 2.6.
We concur: COOPER, P.J., and RUBIN, J. --------------- Notes: Respondent Jennifer filed an unopposed request for judicial notice on February 18, 2003, pertaining to pleadings filed in the Probate Department and Family Law Department. Request for judicial notice is granted. One such pleading reflects that on October 7, 2002, appellant filed a notice of motion and declaration of joinder in the pending family law case.