Opinion
D075477
04-21-2020
Guardianship of J.B., Minor. T.B., Petitioner and Respondent, v. MONIQUE CAMPBELL, Objector and Appellant.
Volunteer Lawyers of San Diego and Judith Klein for Objector and Appellant. No appearance by Petitioner and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Diego Co. Super. Ct. No. 37-2016-00032020-PR-GP-CTL) APPEAL from an order of the Superior Court of San Diego County, Robert Longstreth, Judge. Affirmed. Volunteer Lawyers of San Diego and Judith Klein for Objector and Appellant. No appearance by Petitioner and Respondent.
Appellant and objector Monique Campbell appeals from an order denying relief from an order terminating her guardianship of then three-year-old J.B. We affirm the order for the reasons stated below.
BACKGROUND
J.B. was born in 2015, and spent his first year with his mother T.B. (mother) and her parents in Texas. In April 2016, mother and J.B. moved to San Diego and stayed with mother's cousin, Monique Campbell. Campbell filed a petition for guardianship of J.B. on September 15, 2016, stating that mother did not oppose the petition. The Family Court Services (FCS) investigator recommended granting the petition. The court granted guardianship to Campbell, effective January 5, 2017.
Mother filed a petition to terminate Campbell's guardianship on March 27, 2018. She said she had agreed to Campbell's guardianship only temporarily, had since moved back to live with her parents in Texas, and was working and stable. Mother also filed a petition seeking guardianship of J.B. for her, her mother and stepfather (jointly, the grandparents). Campbell filed objections. After speaking with both mother and Campbell, the FCS investigator recommended denial of the change of guardianship. The investigator stated that mother had had a stable job and home with the grandparents for only a short time, and it was not known if she could or would maintain that stability. More importantly, the child was three years old and had been in the sole custody of Campbell for the prior two years. "[I]t would not be in the child's interest, or ongoing healthy development, to have his home life destabilized by termination of guardianship." The investigator recognized that developing a closer bond with mother would be beneficial for the child and recommended that mother begin regular contact with J.B.
A hearing was held on July 11, 2018. Campbell was present, and mother and the grandparents were present telephonically. All were self-represented. The oral proceedings were not recorded. According to the court, all parties agreed to termination of Campbell's guardianship and transfer of J.B. back to mother, subject to a reasonable transition period. The court granted termination of Campbell's guardianship and appointed J.B.'s grandparents as guardians. It ordered the parties to work together on the transition of J.B. to Texas and to accommodate visitation by Campbell. The court issued an order terminating guardianship on July 16, 2018, and an order appointing the grandparents as guardians on September 7, 2018.
On October 5, 2018, Campbell filed a motion to set aside or vacate the order terminating her guardianship and the order granting guardianship to the grandparents. Campbell also filed a petition to change J.B.'s residence outside of California, stating that J.B. still lived with her and that she was moving to Michigan. Campbell filed a declaration stating that she said she approved of J.B. going to Texas during the hearing. She said she meant, but did not state at the hearing, that she approved of J.B. going to Texas for visitation, not permanently. The court asked the parties to work out the transition, and they all discussed J.B. going to Texas. The court said everyone seemed to "be on the same page about terminating guardianship." Campbell said she tried to tell the court that she did not agree to terminating her guardianship, "but I fear my requests were confused with other's statements and may have been misinterpreted by the Court."
The court heard Campbell's motions on December 5, 2018. Campbell and the grandmother appeared and were represented by counsel. The court denied the motion under Code of Civil Procedure section 663 because the 60-day jurisdictional limit had passed. As to the motion for relief under Code of Civil Procedure section 473, the court ruled that Campbell had delayed too long in seeking relief. (See Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 33 [moving party must show diligence in addition to complying with statutory time limits].) The court stated that Campbell knew at the conclusion of the July 11 hearing that the court had terminated guardianship but waited until October 5 to file her motion for relief. The court said, on the merits, that there was no mistake at the July 11 hearing and that everyone agreed to transition J.B. back to mother and grandparents.
Campbell filed a petition on December 20, 2018, requesting a visitation schedule with J.B. She stated that the grandparents picked up J.B. on November 11, 2018, took him to Texas, and had prevented Campbell from contacting or visiting him. The record does not indicate what happened on that petition.
Campbell filed a notice of appeal on January 7, 2019.
DISCUSSION
Standard of Review
The purpose of a guardianship is "to ensure and protect the welfare of a minor who ordinarily cannot protect himself or herself." (Guardianship of A.L. (2014) 228 Cal.App.4th 257, 267 (A.L.).) "The best interest of the child is the sole criterion governing guardianship termination proceedings." (Id. at p. 268; Guardianship of L.V. (2006) 136 Cal.App.4th 481, 489-490 (L.V.).) "What constitutes the best interest of a child presents an inherently factual issue" and "is 'an inquiry that is particularly founded on application of the trial court's experience with human conduct.' " (A.L., at p. 268.)
"The decision whether to terminate a guardianship is committed to the sound discretion of the trial court." (L.V., supra, 136 Cal.App.4th at p. 488.) We review the trial court's factual findings for substantial evidence. (Id. at p. 487.) "We view the evidence in a light most favorable to the trial court's decision, resolving all conflicts in the evidence and drawing all reasonable inferences in support of that court's findings." (Ibid.) "[I]ssues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193 (Heather A.).) We accept the trial court's determination of credibility. " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
We are hampered here by the absence of a record of the oral proceedings. "[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal . . . . 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court.' " (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).)
The court here determined that Campbell agreed to transfer J.B. back to his mother, with the grandparents having guardianship of J.B., after an appropriate transition plan. Unfortunately for J.B., no transition plan occurred. Mother and grandparents took no action to visit J.B. after the July 11 hearing, and Campbell had changed her mind by early October, likely due to the inaction of mother and the grandparents. The grandparents took custody of J.B. in November 2018. The trial court ruled that Campbell's motion for relief from the July 11 order was unreasonably delayed, but that it lacked merit in any event because there was no error in the court's decision that the parties agreed to return custody of J.B. to mother.
Campbell contends that the July hearing was flawed because the court took no evidence. There were no disputed facts, however. There was no evidence that any of the parties would be detrimental to J.B.'s best interest. The only relevant fact—that J.B had been in Campbell's custody for two years—was not disputed. The investigator recommended against termination of Campbell's guardianship due to the rebuttable presumption that removal of a child from the care of a nonparent who has assumed a parental role is detrimental and not in the best interest of the child. (Fam. Code, § 3041 .) We presume, in the absence of evidence to the contrary, that when the court terminated guardianship in July, the court had read the investigative report and Campbell's objections and was aware that J.B. had been in Campbell's custody for two years. (Evid. Code, § 664; J.H. McKnight Ranch, Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th 978, 984 (McKnight Ranch).) We also assume the court was correct in finding that Campbell had changed her stance since filing her objections and that at the July hearing she approved of the transfer back to mother and the grandparents. (Heather A., supra, 52 Cal.App.4th at p. 193 [we accept credibility determination of trial court].) Campbell corroborated the court's finding by stating that "[s]tatements made during the 7/11/2018 hearing could potentially have led the court to believe that [Campbell] consented to the change of custody . . . . " Campbell corroborated this by stating that she approved of J.B. going to Texas during the hearing and that she intended, but did not say, that she approved travel for visitation only.
Probate Code, section 1514, subdivision (b) specifies that the appointment of a guardianship is governed by the Family Code chapters beginning with sections 3020 and 3040. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1123.) --------
Campbell has not overcome the presumption that the trial court's order is correct. (Jameson, supra, 5 Cal.5th at pp. 608-609.) Based on the record before us, we conclude the trial court did not abuse its discretion in terminating Campbell's guardianship.
DISPOSITION
The order of the court terminating Campbell's guardianship is affirmed.
BENKE, Acting P. J. WE CONCUR: AARON, J. DATO, J.