Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a order of the Superior Court of San Diego County No. ED70464, Christine K. Goldsmith, Judge.
McCONNELL, P. J.
Judy W. and Roy W., in propria persona, appeal an order granting her visitation and telephone contact with K.M., her granddaughter and his step-granddaughter. The grandparents' principal contentions are that the court erred by not including Roy and the maternal aunt and uncle in the order, as they were named in the petition, and the imposition of supervised visitation, visitation only in San Diego, and monitored phone calls is unwarranted. We affirm the order.
To protect the identity of the minor, we use first names and last initials.
FACTUAL AND PROCEDURAL BACKGROUND
In October 1997 K.M. was born four months prematurely to Kandra M. in Utah. K.M. weighed only one pound and two ounces at birth, and she remained in the hospital for several months. Because of her prematurity, she has special needs. Kandra was never married to K.M.'s biological father, Jacob R., who lives in the San Diego area.
Kandra had severe health problems predating K.M.'s birth, and she died in June 2005. Before Kandra's death, K.M. lived with her grandparents for several years, and they helped Kandra raise her. K.M.'s maternal uncle and aunt, Kalun and Kristi M., also cared for her at their home during Kandra's many hospitalizations. After her death, Jacob agreed that K.M. would temporarily remain in Utah and live with Kalun and Kristi.
In the fall of 2006, Jacob petitioned the court in Utah and gained custody of K.M. She now lives with him, his wife and their children.
In April 2007 the grandparents filed a "Petition for Grandparent and Aunt and Uncle Visitation Rights re Minor Child of Deceased Parent." (Some capitalization omitted.) The petition alleged the grandparents and the aunt and uncle provided K.M.'s care for her first nine years, and despite a strong bond among them Jacob would not permit visitation for "longer than a few minutes and not outside [his] presence," and he severely restricted telephone access and monitored calls. The petition alleged Jacob did not acknowledge K.M. was his daughter until she was three and a half years old, when a paternity test was done, and he did not obtain custody of her until she began receiving social security death benefits.
The petition prayed for visitation in Utah of a minimum of one weekend per month, nine consecutive weeks each summer, alternating Thanksgiving and Christmas holidays, and the spring holiday each year. Further, the petition prayed for unsupervised overnight visitation in San Diego on advance notice, and private phone and mail contact.
On July 9, 2007, Judy, by telephone from Utah, and Jacob participated in a mediation conference before Jim Stanley, a counselor with Family Court Services. They were unable to reach any agreement.
Stanley's report states Judy revealed to him that she called child protective services when K.M. returned to Utah after a spring 2006 visit with Jacob because she reported "that he had touched her in an inappropriate manner." Judy said that neither Utah nor California officials would investigate. According to Stanley's report, Judy told him, " 'When I get her here I'm going to get her a complete psychological evaluation.' "
The report also states that Stanley interviewed K.M. and she appeared "generally happy and bright. She was clean, well groomed, and appeared to be in good health. The child reported that she is able to call the grandmother whenever she wishes but does not like to because the grandmother is still focused on talking about the mother. Information obtained from the interview was taken into consideration when developing the recommendations."
Stanley had read a July 2007 letter by K.M.'s therapist, Kate Bennett. His report states the "letter indicates that the child is adjusting to life in the father's home. She stated that the child appears to have some social delays but is now interacting more with her siblings. She also said 'I feel that her current home is loving and consistent, and that [K.M.] will continue to make progress here.' [¶] The therapist letter recommended that [K.M.'s] visits with the maternal grandmother be in San Diego County."
Additionally, Stanley spoke with Bennett on July 13. His report notes: "She said she has been seeing [K.M.] on a weekly basis since April 2007. The child has been tentatively diagnosed with dysth[y]mia and ADD. She said the child is taking Ritalin and that seems to help with both focus and mood. She said they are working on social skills, expression of feelings, and dealing with stress. The therapist intends to continue seeing the child as long as her symptoms persist. [¶] The therapist indicated that she does not support the child visiting Utah on a monthly basis because the child needs stability and structure. She said the father and stepmother have been cooperative and they seem to have the child's best interests at heart. [¶] The therapist also said the child is adjusting to her siblings and doing 'very well' in the father's home. She said the stepmother is helpful and supportive."
On July 13 Stanley also spoke to the most recent child protective services worker on the matter, and he "indicated that he found no concerns in the father's home and added that it seems this is mostly a custody battle. He said he found the father and stepmother to be on top of things and to be concerned about the child." The social worker could not substantiate any allegations against Jacob, and said "he believes the . . . grandmother knows how to 'work the system.' "
Stanley explained in his report that he "is also concerned that the . . . grandmother may be trying to 'work the system' to gain some advantage. She initially reported allegations of sexual abuse in Utah, but when Child Protective Services there would not investigate, she reported the same allegations here after the child began living with the father. [¶] Child Protective Services in San Diego County did investigate the second referral but found the father and stepmother to be concerned caregivers and nothing to substantiate. [¶] Also of concern is the . . . grandmother's comment during the mediation, 'When I get her here I'm going to get her a complete psychological evaluation.' " [¶] Such behavior causes [me] to believe that the grandmother is willing to do whatever it takes to have this child in her care, even if she does not have legal standing. . . . It is also concerning that, despite the discomfort it causes the child, she continues to focus on the death of the mother when speaking with the child."
Stanley recommended that legal and physical custody be with Jacob; that Judy have supervised visitation in San Diego for up to four hours per visit, on 15 days written notice, and scheduled telephone contact on Wednesday and Saturday evenings, with monitoring at Jacob's discretion. The order was silent on any visitation or other contact for Roy, Kalun or Kristin.
The hearing was held on July 24, 2007. Judy disagreed with some of the information in Stanley's report and with his recommendations. She gave a lengthy statement on K.M.'s history. The court asked Roy if he wanted to add anything, and he responded, "No. Other than the fact that my wife was the primary caregiver of the child since her birth until she left us about a year ago."
Jacob testified that "[s]ince my daughter has been here, she has stopped wetting the bed, she's stopped worrying, her grade point average has come up one grade, she has received awards in school. [¶] The reasons we stopped conversations with her grandmother is because I have two letters here from her psychiatrist that she was seeing who was asking us to . . . cut off her letters if she could not stop speaking about her mother because it was upsetting my daughter, and . . . because some of the things she was talking about were inappropriate." Jacob testified that K.M. was allowed to call her grandmother whenever she liked, and he monitored the calls "because that's what her psychologist asked me to do." He also stated K.M. "has a complete book of all of her aunts and uncles which she's allowed to call at any . . . time." Jacob denied any inappropriate touching.
The court commended the grandparents for caring for K.M. when she was in Utah. The court explained, however, that Jacob "is her father, and he is doing a fine job. Whatever issues you may have thought you had with [him] early on, he is doing everything appropriately now. The child is in [therapy], the child is in school, the child is making progress here, the child is in a home with siblings, a two-parent household. She is doing well bonding with her father and [is] moving forward." The court found Stanley's recommendations appropriate and adopted them. The court also issued an additional order that K.M. remain in therapy with her current therapist.
Jacob has not filed a respondent's brief. Accordingly, we decide the appeal on the appellate record and the opening brief. Oral argument was waived. (Cal. Rules of Court, rule 8.220(a)(2).)
I
"If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child's minority upon a finding that the visitation would be in the best interest of the minor child." (Fam. Code, § 3102, subd. (a).)
All statutory references are to the Family Code.
The grandparents contend the trial court erred by not ordering visitation for Roy, Kalun and Kristi, as their names appear on the petition. Neither Judy nor Roy, however, raised any objection at the hearing pertaining to the lack of any visitation recommendation in Stanley's report for Roy, Kalun and Kristi. The court specifically asked Roy if he had any comments, and he did not mention that he would like a visitation schedule. Further, Kalun and Kristi did not appear at the hearing, either in person or by phone, to protect their interests. Issues not presented to the trial court are waived on appeal. (Royster v. Montanez (1982) 134 Cal.App.3d 362, 367; Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167.)
II
The grandparents next challenge the evidence to support the court's order making Judy's visitation supervised, for visitation only in San Diego, and for monitored phone calls. They assert visitation in San Diego is unreasonable because of their financial situation, and there is no reason Judy must have oversight.
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)
Contrary to the grandparents' assertion, the court did not make any finding that Judy is an "unfit" grandmother. Rather, Stanley explained in his report that K.M. told him she does not like speaking with Judy on the phone because Judy "is still focused on talking about the mother," and that upset K.M. His report notes he was concerned because despite the discomfort it caused K.M., Judy persisted in focusing on Kandra's death with K.M. Moreover, after interviewing Judy, Stanley believed she "is willing to do whatever it takes to have this child in her care, even if she does not have legal standing." Further, K.M.'s therapist, Bennett, told Stanley she did not recommend K.M. traveling to Utah for visits.
The grandparents' reliance on Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, for the burdens of proof here is misplaced, as that is a summary judgment case.
The grandparents did not put on any expert testimony or other evidence to dispute Stanley's or Bennett's recommendations. Judy testified, but she did not dispute that she continued to speak with K.M. about Kandra's death, or that it had an adverse affect on her. To the contrary, she indicated that she would persist in doing so despite any discomfort it caused K.M. Judy said that "[K.M.] very badly needs to go through this grieving of the death of her mother. I don't know if anybody ever really adjusts to the death of a mother, but a child who loses her mother at seven and a half years old who is very, very bonded to her having being a single mother, she needs a lot of grieving to go through, she needs to be able to talk about this." Judy testified she was upset that Jacob had cut off her communications with K.M. "about every single trauma she's gone through." Judy also testified that she understood K.M. "cannot remember her mother at this point," and "I want to be able to help [her] through this period of disassociation she's going through." Judy, however, is not a mental health care provider, and although she believes she has acted in K.M.'s best interests, the professionals in this case disagree.
Moreover, Judy testified she wanted to question K.M. about "protective services issues that we have brought up," and she could only do that if "I'm allowed to talk to [her] in a free manner [and] visits not be monitored."
" ' "It is fairly deducible from the cases that one of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. . . ." ' " (Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815.) " 'The abuse of discretion standard . . . measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria.' " (Ibid.)
Substantial evidence supports a finding that Stanley's recommendations are in K.M.'s best interest, and thus we find no abuse of discretion. Further, Jacob agreed with Stanley's recommendations and he was "entitled to a presumption that he will act in his child's best interests, and his decision regarding the amount of visitation . . . must be given deference." (Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 863.)
III
Additionally, the grandparents contend the court erred by relying on Stanley's report "without evidence presented in court to substantiate his findings." Under the Family Code, however, "the mediator may, consistent with local rules, submit a recommendation to the court as to the custody of or visitation with the child." (§ 3183, subd. (a).) The grandparents cite no legal authority to the contrary. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
The grandparents also argue that "[m]embers of a deceased parent's family should have the opportunity to demonstrate that visitation with the child would further a legitimate state interest of maintaining the child's like with her maternal family." Section 3185, subdivision (b) provides that when a grandparent requests visitation, he or she "shall be given an opportunity to appear and be heard on the issue of visitation." The court gave Judy and Roy ample opportunity to be heard and to put on any relevant evidence. Contrary to Judy's assertion, she did have the opportunity to rebut what she calls the "mediator's libelous statements . . . that likely prejudiced the court to not grant reasonable visitation."
Further, it is immaterial that the court did not read the petition allegations to Jacob at the hearing. Likewise, there is no merit to the grandparents' assertion that Stanley did not advise the court the parties could not reach an agreement and a trial would be required. Page 2 of his report states the "parties were unable to reach an agreement regarding a sharing plan for the child." The grandparents appear to believe a trial was not held, but the hearing was a contested matter that constituted a trial on the merits. They were not entitled to an additional evidentiary trial, and they raised no such argument.
The grandparents also complain that Stanley did not provide them with a copy of his report before the hearing, but the report shows he copied it to Judy. When the hearing began, the court asked Judy if she had reviewed the report and she responded affirmatively, and had comments on it. In any event, if the grandparents received the report only shortly before the hearing they waived appellate review of the matter by not objecting on that ground at the hearing.
Lastly, the grandparents submit the court erred by making a custody determination since their petition concerned only visitation. They say the "issue of custody had previously been argued and decided in September 2006 in the Utah Fourth District Court with all parties present." They cite section 3178, subdivision (b), which provides, "Where a stepparent or grandparent seeks visitation rights, the agreement shall be limited to the resolution of issues relating to visitation." (Italics added.) The term "agreement" refers to an "agreement reached by the parties as a result of mediation." (§ 3178.) Here, there was no mediation agreement, and thus the statute is inapplicable. The grandparents cite no authority showing the court erred by entering a custody order in California after the hearing on the petition, and in any event, there is no prejudice to them as Jacob already had custody of K.M. and they did not seek custody here.
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, J., HALLER, J.
We deny the grandparents' two motions to augment the record filed on January 22, 2008. On December 18, 2007, the grandparents moved to augment the record with the identical two documents, and on January 10, 2008, we denied the motion. The January 14, 2008, letter from their Utah attorney is inadmissible because it was generated after the hearing in this matter, and our review is confined to the record before the trial court. The September 27, 2007 e-mail to the grandparents from a court reporter that erroneously describes this action as a marriage action, was also generated after the hearing and is irrelevant. Neither document affected the court's ruling.