Guardianship of J.G.
Filed 4/23/13 Guardianship of J.G. CA1/1
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
Guardianship
of J.G., a minor.
B.W.,
Petitioner and Respondent,
v.
L.F.,
Objector and Appellant.
A134472
(Contra Costa County
Super. Ct. No. P04-01537)
When
the natural mother (Mother) of J.G. (the minor) found herself incapable of
caring for him, she consented to a probate guardianship, turning over
responsibility for the minor’s care to her own mother (Guardian). During the first years of the guardianship,
Mother maintained contact with the minor, but her continued drug use rendered
her incapable of resuming his care. As
Mother eventually overcame her problems, seeking
greater role in his life, she and Guardian proved incapable of cooperating in
the minor’s care. The probate court
eventually terminated the guardianship, concluding the continuing conflict
between Mother and Guardian was harmful to the minor. Guardian contends the probate court abused
its discretion for a variety of reasons, but we find no error and affirm.
BACKGROUND
The
minor was born in February 2004 into a deeply dysfunctional home. Mother had been a methamphetamine addict from
age 18, and his father had a long criminal record, including charges of
violence. When the minor was seven
months old, Mother abandoned him with Guardian, her own mother. Mother did not oppose a petition for
appointment of Guardian as a temporary guardian, filed in November 2004. At the time, as Mother later recognized, she
“was in no condition to take care of myself or a child.†The guardianship was made permanent in
February 2005, just after the minor’s first birthday. Mother’s involvement in the minor’s life over
the following two years was sporadic, as she continued to struggle with drug
abuse. Despite her problems, however,
she visited with the minor fairly frequently and remained a presence in his
life.
Conflict
between Mother and Guardian began almost with the inception of the
guardianship. In late 2005, Mother was
forced to apply for relief to the probate court when Guardian, as she admitted,
refused to comply with the court’s visitation order. In requiring compliance, the court noted, “It
is not reasonable for [Guardian] to decide unilaterally whether she will choose
to comply with court orders. Ideally the
parties’ relationship will improve to the point where no specific visitation
orders are required. Clearly they are
not yet at that point.†Thereafter,
Mother and Guardian continued to bring various disputes to court. Notwithstanding the hopes of the court, the
parties’ relationship seemed only to worsen over the subsequent six years.
In
August 2007, three and a half years after the minor’s birth, Mother asked the
court for unsupervised visitation “to begin the slow transition for my son to
eventually resume in my full custody.†A
child custody evaluator appointed by the court filed a report in January
2008. According to the report, the parties
were still in conflict over Mother’s visitation. Guardian, who criticized Mother as
insensitive, untrustworthy, and tolerant of risky conduct, reported to the
minor’s therapist that the minor showed “stress and agitation†in connection
with the visits. The therapist had
observed similar signs. The minor’s
attorney believed Guardian had thwarted Mother’s supervised visitation with the
minor by being “inflexible†with respect to visitation supervisors. The evaluator concluded Mother was “more
stable than years ago†because she had ceased drug use eight months earlier and
begun living with her father, but the evaluator believed Mother’s “underlying
personality problems†would interfere with her parenting and recommended
continued custody to Guardian.
Notwithstanding
the evaluator’s report, Mother filed a petition to terminate the guardianship
in March 2008. In the months afterward,
the parties continued disputing the scope and nature of Mother’s visitation. In a declaration requesting an “interim visitation
order,†Guardian stated the minor “in parallel with the increased visitation
and supervision changes†had “exhibited a re-occurrence and increase of anxiety
symptoms.†Based on the minor’s
comments, the therapist blamed these symptoms on the conduct of Mother and her
family members, although the therapist had never actually observed the
interaction between the minor and Mother.
Mother blamed the minor’s symptoms on Guardian’s manipulative conduct. As a result of the parties’ inability to
cooperate, even seemingly trivial matters continued to require court
intervention.
In
November 2008, Mother proposed her paternal grandparents as replacement
guardians. In an interview with the
investigator appointed in connection with this proposal, Guardian expressed
concern over the minor’s anxiety in anticipation of visits with Mother and
criticized Mother’s conduct with the minor.
The minor himself told the investigator he liked visiting Mother. Mother was equally critical of Guardian,
believing she was thwarting her own attempts to reestablish a relationship with
the minor. When the investigator
covertly observed Mother’s interactions with the minor at a park, the minor
appeared “carefree,†and the minor, Mother, and her grandparents “appeared to
have a genuine, loving and connected relationship with one another.†In a brief report to the court, the minor’s
counsel similarly noted warm and positive relationships between both the minor
and Mother and the minor and Guardian, and the minor told the attorney he “had
fun†at both homes.
A
three-day trial on the petition to terminate the guardianship or replace the
guardian began on June 9, 2009, by which time Mother had been drug-free for two
years.
January 2008 report recognized Mother’s “tremendous progress in her own lifeâ€
and her love for the minor, but she believed Mother was more concerned with
regaining custody of the minor than being a good parent. She was also uncertain whether the minor was
comfortable with Mother and believed Mother was motivated by jealousy of
Guardian and her relationship with the minor.
The evaluator strongly recommended a permanent continuation of the
guardianship because the minor had developed a strong relationship with Guardian
and suffered anxiety over the uncertainty created by the possibility of the
loss of his home. She saw Mother as a
weekend parent, rather than a primary caretaker. The minor’s long-time therapist reached a
similar conclusion.
The
probate court denied the petition to terminate the guardianship, but it
expanded Mother’s visitation rights, removed the requirement for supervision of
visits, and increased Mother’s role in the minor’s everyday life, on condition
Mother submit to periodic drug testing.
The court told Guardian her “lack of flexibility†regarding visitation
“is contrary to [the minor’s] best interest†and warned her that an
unwillingness to compromise “will play a part in perhaps accelerating a
termination of a guardianship.â€
At
the end of 2009, a new therapist appointed for the minor filed a letter report
with the court. The therapist found the
minor to be a “very fragile child†with a “major anxiety disorder.†The therapist objected to a planned vacation
with Mother, since the minor had expressed contempt for Mother and had
“difficulty negotiating†the visits with Mother. The therapist concluded, “[Mother] seems to
be working to overcome some of the harm that was done to her son in the past,â€
but it was still “fresh in this child’s psyche.†Mother filed a declaration stating the minor
was excited about the pending trip and attributed the minor’s negative comments
to the influence of Guardian. Mother
believed Guardian’s anxiety was “having a devastating impact on [the minor’s]
state of mind and emotions.†Minor’s
counsel supported the therapist. The
court precluded the vacation and scheduled a status hearing.
At
the hearing, in February 2010, the new therapist stated her concerns about the
minor’s fragility, but she conceded the interactions between Mother and the
minor she had seen were positive.
Following the therapist’s testimony, the probate court denied an
informal request by Mother’s counsel to terminate the guardianship, saying,
“the primary attachment is with the guardian, and . . . we need more
time to increase the contact with [M]other and get over the hurt that was
caused and the severe pain based on the prior relationship.†The court reprimanded the parties for
bickering rather than cooperating, telling Guardian, “[Y]ou are going to be the
one responsible for making these transitions work. You’re going to be the one that needs to
decrease [the minor’s] stress because[,] otherwise, I’m simply going to place
him with his mom, and that will be devastating to him, but it will stop the
aggravation between you and his mother.â€
After directing increased visitation for Mother, the court warned,
“[J]ust a reminder to both of you, you really need to work together. [The minor] is stressed, and he’s picking up
on the hostility between the two principal adults in his life. Don’t do that to him.â€
A
few months after this hearing, in May 2010, Mother filed another petition to
terminate the guardianship, claiming a continued lack of cooperation from
Guardian. In July, at the suggestion of
the minor’s counsel, a judge pro tem directed the parties to mediation. The mediation resolved a few issues, but the
parties continued filing contentious declarations, and Mother did not withdraw
her petition.
At
a hearing in October 2010, the probate court set the petition for trial. In response to an objection by Guardian’s
counsel that Mother’s petition failed to state a prima facie case for
termination, the court responded, “But it may have. One of the things I made very clear is that
if [Guardian] was interfering with the visitation, that I would find that this
was directly contrary to the child’s best interest and [that] would then
encourage me to terminate the guardianship.â€
The court initially set the matter for a half-day hearing, intending to
determine from the parties’ testimony whether Guardian was being “rigid[] in
visitation†and “making plans for [the minor] on mom’s time without
[consulting] with mom.â€
At
the half-day hearing, in November 2010, only Mother testified. She said she was living in Napa, renting the
bottom floor of a two-story home, and working as a waitress and an aerobics
instructor. She had been drug-free for
three years seven months. Mother
described examples of lack of cooperation by Guardian in the scheduling of the
minor’s activities, often in conflict with Mother’s visitation and without any
advance consultation with Mother. When
differences occurred, Guardian insisted on discussing them with Mother at the
time of exchanges, in front of the minor, or electronically, rather than by
telephone. She believed Guardian was
inflexible and controlling with respect to her visitation. At the end of the hearing, the probate court
precluded the parties from discussion of parenting issues in the minor’s
presence and required the parties to set a time for a weekly telephone call to
discuss the minor’s well-being and visitation logistics.
In
testimony at the second day of trial, in March 2011, the minor’s teacher and
Guardian testified about the minor’s friends, schooling, and activities under
Guardian’s care, including her involvement in the minor’s school and his
education. When Guardian began to
explain her side of some of the conflicts described by Mother at the November
hearing, the examination was cut short by the court, in an effort to avoid
“minutiae.†Guardian was permitted,
however, to dispute Mother’s claim not to have been consulted with respect to
the minor’s activities. Guardian believed
the minor’s visits with Mother were upsetting to him and was concerned Mother
had done little to involve herself in the minor’s daily life. Retaking the stand, Mother testified that her
work schedule would permit her to act as a full-time parent to the minor during
the coming summer.
At
the close of evidence, the minor’s counsel suggested the court suspend the
guardianship for the summer, giving primary custody to Mother with visitation
to Guardian. Although counsel recognized
the minor’s primary attachment was to Guardian, perhaps inevitably because she
was his primary caretaker, counsel had concluded “it’s time perhaps to think
about a change.â€
The
court began its ruling by noting, “The biggest problem for [the minor] is the
conflict between [G]uardian and [M]other.
As long as there’s a guardianship in place, that conflict is going to be
there and it is going to operate to the detriment of [the minor].†While recognizing the critical role played by
Guardian in the minor’s upbringing, the court noted his bond with Mother was strengthening. The court adopted the recommendation of the
minor’s counsel, suspending the guardianship for the summer and requiring the
parties to develop a visitation plan for Guardian. While noting its intent to terminate the
guardianship at the end of the summer if there were no “real problems that
require continuation of the guardianship,†the court cautioned Mother that the
burden was now on her to cooperate with Guardian’s visitation.
In
preparation for the end-of-summer hearing, held August 9, 2011, Guardian filed
pleadings seeking reinstatement of the guardianship and appointment of a child
custody evaluator, contending the minor had not adjusted well to the change
during the summer. Mother, in contrast,
submitted a declaration stating the minor had done well in her care and had
been admitted to a leading elementary school in Napa. The parties expanded on their positions in
testimony at the hearing. The probate
court continued to believe “[t]he conflict between Guardian and Mother is
clearly affecting the child, has affected the child for a long time, and
. . . keeping the Guardianship in place . . . fuels that
conflict.†As a result, “I find it
necessary to terminate the Guardianship. . . . [A]nd I do believe
that that is in the best interest of [the minor] because I believe that it will
suspend/terminate the conflict.†An
order terminating the guardianship was filed in December 2011. The court subsequently denied Guardian’s
motion for an order vacating the termination and granting a new trial.
DISCUSSION
Guardian
contends the probate court abused its discretion in terminating the
guardianship.
“[P]robate
guardianships [are] an alternative placement [to the dependency statutes] for
children who cannot safely remain with their parents. [Citation.] . . . Probate
guardianships are not initiated by the state, but by private parties, typically
family members. . . . 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 [by the guardian] sought under [Probate Code] section
1516.5. [¶] . . . The probate court may appoint a
guardian ‘if it appears necessary or convenient.’ [Citation.] . . . A probate
guardianship is often established with parental consent, as in this case. [Citations.] . . . [¶] Early
authorities held that in contested guardianship cases, parents were entitled to
retain custody unless affirmatively found unfit. [Citation.]
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. [Citations.] The Probate Code now specifies that the
appointment of a guardian is governed by the Family Code chapters beginning
with section 3020 and 3040.†(
45 Cal.4th 1110, 1122–1123, fns. omitted (Ann S.).)
Although
guardianship statutes expressly refer to the custody provisions of the Family
Code only with regard to the establishment of a guardianship (Prob. Code,
§ 1514, subd. (b)), it is now well-established that they also provide a
guide to the termination of a guardianship once established. (Guardianship
of L.V. (2006) 136 Cal.App.4th 481, 490 (L.V.); Guardianship of
Kassandra H. (1998) 64 Cal.App.4th 1228, 1238–1239 (Kassandra).)
Family Code section 3041 requires a showing of detriment before custody
of a child can be granted to a nonparent (id.,
subd. (a)), but the situation changes once custody has been transferred from a
parent to a guardian. “Section 3041
further provides that if a preponderance of the evidence shows a nonparent has
assumed the parental role for a substantial period of time by providing a
stable home where the child’s physical and emotional needs are met (i.e., a de
facto parent), this establishes the required showing that nonparental custody
is in the best interest of the child and that parental custody would be
detrimental. (§ 3041, subds. (c),
(d).) However, a parent may refute the
evidence supporting custody with a de facto parent by showing by a
preponderance of the evidence that there would be no detriment from parental
custody and that nonparental custody is not required to serve the best interest
of the child.†(H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 1137.)
The
basis for this “stable placement presumption†(Guardianship of Vaughan (2012) 207 Cal.App.4th 1055, 1073) afforded
a successful guardianship was explained in L.V.: “Another factor that must be considered is
the law’s recognition of the importance of continuity and stability in a
child’s living arrangements.
[Citations.] Thus,
arrangements—and the harm that may result from disruption of established
patterns of care and emotional bonds with the primary caretaker—weigh heavily
in favor of maintaining ongoing custody arrangements.’ [Citations.]
This is true regardless of whether the ongoing custody arrangement was
established by court order or by the consent of a noncustodial parent.†(L.V.,
supra, 136 Cal.App.4th at p. 495.)
Once a guardian has established the stable placement presumption, a
parent seeking to terminate his or her child’s guardianship must rebut the
presumption that removal of the child from the stable placement would be
detrimental and demonstrate affirmatively that the change in custody is in the
child’s best interests. (
In
evaluating a probate court’s resolution of these issues, we largely defer to
the court’s judgment. “The decision
whether to terminate a guardianship is committed to the sound discretion of the
trial court. [Citations.] 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.†(L.V., supra, 136
Cal.App.4th at p. 488.)
A. The Probate Court’s Decision
Applying
this standard, we find no abuse of discretion in the probate court’s
termination of the guardianship. Before
addressing the merits of the court’s decision, we note the judge who entered
the order terminating the guardianship, the Honorable Joyce Cram, had begun
presiding over the proceedings at the June 2009 trial on the first petition to
terminate. By the time she entered the
order terminating the guardianship, Judge Cram had spent two years with both
parties, observing their testimony on more than one occasion, reviewing their
submissions, and resolving the disputes that arose in the course of the
guardianship. The decision was therefore
the end of a two-year process of inquiry and evaluation by an experienced
jurist, fully deserving of the deference we are required by our standard of
review to give.
There
was substantial evidence to support a finding that Mother had rebutted the
stable placement presumption that removal of the minor from his guardianship
placement would be detrimental.
Importantly, from the minor’s point of view, the placement had not been
entirely successful. He was
characterized by his therapist as a “fragile†child with a “major anxiety
disorder,†and he had persistent physical symptoms. Both the therapist and the probate court
located the source of at least some of his problems in the nature of the
guardianship placement. The minor had
difficulty coping with the transitions between Mother and Guardian and the
incessant conflict between them. Not
only was Guardian unable to alleviate his anxiety, but the probate court had
concluded Guardian was in part responsible for the anxiety-producing
conflict. The court repeatedly cautioned
Guardian to exercise more respect for Mother’s visitation rights and minimize
the minor’s involvement in the conflict between them, but both the conflict and
the minor’s suffering persisted.
Further,
there was no showing that the minor’s attachment to Guardian was so strong that
placing him with Mother would harm him.
There is no dispute the minor’s “primary attachment†was with Guardian,
but as the minor’s counsel recognized, this was an inevitable result of
circumstances. Guardian had raised him
from infancy, and his experience with Mother was limited. Notwithstanding this “primary attachment,â€
however, he got along well with Mother and enjoyed his time with her. While she may have been incapable of caring
for him earlier, by the time the termination order was entered Mother was
self-supporting and had involved herself successfully in the minor’s life. There was no evidence that transferring his
attachment to Mother, in the context of a transfer of custody, would be
psychologically harmful. On the
contrary, by resolving the long-standing uncertainty caused by Mother’s contest
of the guardianship, the transfer held the possibility of relieving the minor’s
anxiety.
Similarly,
substantial evidence supports the probate court’s conclusion that the minor’s
best interests would be served by terminating the guardianship and placing him
with Mother. The probate court was faced
with resolving the difficult situation created by the inability of Mother and
Guardian to cooperate with respect to the minor’s care. In the years preceding the termination
decision, Guardian had been unable, despite warnings from the court, to manage
her relationship with Mother in a manner that did not result in harmful stress
for the minor. Given the long period of
conflict and its repeated warnings, the probate court had no reason to believe
the situation would change if the guardianship continued. Rather, as Mother’s role in the minor’s life
increased, as it naturally would, there was every reason to expect even more
conflict. In addition, there was no
testimony to suggest the minor was disturbed by the prospect of moving in with
Mother. On the contrary, the testimony
of Mother and other members of the extended family was that he enjoyed his
mother and the time spent with her.
Because Guardian was unable to manage the guardianship in a manner that
did not create conflict harmful to the minor, the probate court could
reasonably conclude terminating the guardianship and awarding custody to Mother
was in his best interests.
B. The Need for Continuity
Guardian
first contends the probate court failed to consider the minor’s need for
stability and continuity in terminating the guardianship. We cannot agree. While the probate court never expressly cited
the stable placement presumption, it clearly recognized the importance to the
minor of stability. Beginning in 2009,
two years before the termination of the guardianship, the probate court warned
Guardian her “lack of flexibility†regarding visitation “is contrary to [the
minor’s] best interest†and suggested it could lead to a termination of the
guardianship if not changed. Inherent in
such a warning is the recognition of the desirability of maintaining the minor
in Guardian’s care; if the court had not recognized the need for stability, it
would simply have terminated the guardianship.
Yet while stability and continuity are important, they are not ends in
themselves. A stable, stress-filled
guardianship is of little value to an anxious ward. As discussed above, the probate court
concluded Guardian was unable to change her conduct in a manner that preserved
the value of the long-standing placement.
Guardian
argues the “duration of the guardianship alone militated against its
termination,†but this is contrary to the law.
A guardianship of long duration is presumed valuable, but once that
presumption is overcome, as it was here, the mere duration of the guardianship
is of no legal significance.
In
the same vein, Guardian argues the minor’s “primary
attachment†was to her. This alone,
however, is irrelevant to the legal analysis.
The existence of a primary attachment does not overcome the probate
court’s finding that the continued guardianship was emotionally unhealthy for
the minor. Nor does it demonstrate the
minor would be harmed by the need to shift his attachment to Mother.
C. Changed Circumstances
Guardian
next argues the probate court erred in terminating the guardianship “without a
sufficient showing of changed circumstances.â€
It is not clear a showing of changed circumstances is legally necessary
for the termination of a guardianship.
The requirement derives from cases decided prior to the amendment of the
guardianship laws in 2002. (See
termination requires the court only to consider the child’s best interest,
without requiring any change in circumstances.
(Prob. Code, § 1601.) It is noteworthy that all of the cases cited
by Guardian decided after these amendments address family law custody
determinations, rather than guardianships.
In
any event, the changed circumstances requirement, as it was articulated in
“best interest†analysis: “[N]ew
circumstances justifying the termination of a guardianship must be sufficient
to overcome the inherent disruption of tearing a child away from a guardian who
is doing a good job of caring for and nurturing the child.†(Kassandra,
supra, 64 Cal.App.4th at p. 1239.)
This is another way of stating the requirement that a parent challenging
a guardianship must overcome the stable placement presumption.
Further,
there is no question of changed circumstances here. The guardianship was instituted because, at
the time of the minor’s birth, Mother was a methamphetamine addict in an
abusive domestic relationship who was incapable of caring for a child. She admitted as much, both expressly in court
and implicitly by agreeing to the guardianship.
By the time of the successful request for termination of the
guardianship, Mother had long since ended the abusive relationship, was
self-supporting in long-term employment, and had been confirmed drug-free
through periodic testing for three years.
Plainly, the circumstances existing at the creation of the guardianship
had changed dramatically.
Guardian
discounts this change, claiming the change in circumstances must affect the
child. Assuming this to be true, this
change plainly did affect the minor’s life.
As a result of his mother’s transformation, the minor had a new adult
presence in his life and the opportunity for active involvement with his
natural parent. The inability of
Guardian and Mother successfully to implement the visitation, however, created
in the minor serious anxiety, significantly diminishing his quality of life.
D. The Presumption of Detriment
Guardian
also contends Mother failed to “overcom[e] the presumption of detriment
associated with removing†the minor from a stable placement. It is not clear how this argument is legally
different from her earlier contention that the probate court failed to consider
the minor’s need for stability and continuity, since the presumption derives
entirely from that need. Like the
earlier argument, Guardian’s argument is based on her contention that the
existing guardianship was successful, contrasted with the relative uncertainty
of the minor’s life with Mother. As
discussed above, however, the existing guardianship was in some ways failing
the minor, and the probate court was justified in concluding the change might
address these failings. For the reasons
discussed above, we conclude Mother overcame the stable placement presumption.
Guardian
argues Mother failed to present affirmative
evidence the minor would be better off with her or to rebut the evaluator’s
contrary opinion. On the contrary,
Mother presented her own testimony that the minor was happy in her care. Others testified to similar
observations. In light of Guardian’s
long-time failure to correct the problems in the guardianship, the probate
court was entitled to infer from this evidence that placement with Mother would
be an improvement. Because the
evaluator’s opinion was three years old at the time of the termination and did
not take account of the developments in Mother’s relationship with the minor
since 2009, the probate court was entitled to afford it less weight and was, in
any event, not required to credit it. In
the end, Guardian’s argument in this regard is merely a claim the probate court
erred in evaluating the evidence. Under
the substantial evidence standard of
review, we are precluded from reweighing the evidence.
E. Reliance on Dependency Law
Guardian
argues the probate court “inappropriately applied standards and objectives
drawn from child dependency law,†but there is no substance to the claim. The probate court plainly recognized its duty
was to promote the minor’s best interest, articulating that governing standard
repeatedly during the proceedings.
Guardian’s
argument is premised on the probate court’s efforts at increasing Mother’s role
in the minor’s life, particularly as her competency increased. As Guardian points out, the guardianship
laws, unlike the dependency statutes, do not establish parental reunification
as a goal. (See Guardianship of Christian G. (2011) 195 Cal.App.4th 581,
596–602 [comparing the dependency and guardianship statutes].) Neither, however, do the guardianship
statutes exclude reunification. When the
“ ‘parent or parents are not likely to reclaim the child,’ †the
guardianship laws permit the court to terminate a parent’s rights in a
child. (Ann S., supra, 45 Cal.4th at p. 1125; Prob. Code,
§ 1516.5) In the absence of such a
termination, the probate court has “discretion to grant visitation†(
natural and appropriate for the probate court to increase and relax the terms
of visitation when a parent proves capable, as Mother did, of her role. We find no abuse of discretion in the probate
court’s effort to increase Mother’s role in the minor’s life.
Guardian
argues the “guardianship should [have been] made permanent for the sake of [the
minor’s] mental health and psychological stability,†but the law does not
provide for this type of irrevocable guardianship. Rather, a guardian who seeks permanent
custody of a ward must make a motion under Probate Code section 1516.5 to
terminate parental rights and allow adoption.
Because no motion under section 1516.5 was ever made, the probate court
cannot be faulted for failing to grant it.
Guardian
also argues the probate court “improperly placed the burden of proof upon
[Guardian] to affirmatively prove her ‘flexibility.’ †The argument badly mischaracterizes the
probate court’s actions. The probate
court did not place any “burden of proof†on Guardian. Rather, as discussed above, the court warned
Guardian she was failing the minor by fostering of conflict with Mother. The probate court in no way abused its
discretion in warning Guardian her failures could lead to a termination of the
guardianship.
F. The Conflict
Guardian
contends the probate court erred in “focus[ing]†on the conflict between her
and Mother. Contrary to Guardian’s
argument, however, substantial evidence supported the probate court’s
conclusion that the continuing disputes were a source of anxiety for the minor,
interfering with his psychological well-being.
Guardian seeks to minimize the disputes as an “alleged
‘conflict,’ †but the use of quotation marks is entirely unwarranted. The record reveals the probate court as a
battleground on which Mother and Guardian fought constantly over control of the
minor for six years. Even a cursory
reading reveals the deep dislike and distrust between them, running in both
directions with apparently equal intensity.
As discussed above, there was consistent, credible evidence the minor
suffered anxiety in connection with the transitions between their care. It begins with the evaluator’s report in 2008
and runs through Guardian’s own testimony at the August 2011 termination
hearing, when she said that transitions between her home and Mother’s were
“really difficult†for the minor, causing sleeplessness and nausea. While Guardian attributed the minor’s
reaction to a dislike of spending time with Mother, it was noted by observers
and participants alike that the minor enjoyed his time with Mother and her
family. The probate court could properly
conclude the minor’s suffering was caused not by his feelings toward his mother
but by the stress associated with attempting to negotiate the conflict between
the two most important people in his life.
Even if, as Guardian argues, the probate court wrongly evaluated the
evidence in this regard, the standard of
review precludes us from reweighing it.
Guardian
argues the probate court erred in focusing on the conflict to the exclusion of
the minor’s well-being, but the probate court was not disregarding the minor’s
well-being in focusing on this conflict.
Rather, it viewed the conflict as a substantial barrier to the minor’s
well-being. We see no abuse of
discretion in the probate court’s insight, which was supported by the opinions
of the evaluator and therapist.
Guardian
next faults the probate court for allowing Mother to play a role in the minor’s
life, arguing she should have had complete control over his upbringing. (E.g., Ann
S., supra, 45 Cal.4th at p. 1124 [“parental rights are completely suspended
for the duration of a probate guardianshipâ€].)
While Guardian had control over the minor, Mother had legitimate rights
to visitation that had to be accommodated within the context of Guardian’s
control. We find no abuse of discretion
in the manner in which the probate court resolved the conflict created by these
competing rights. Contrary to Guardian’s
claim, Mother’s visitation rights were not allowed to “undercut†the
guardianship.
Guardian
contends “terminating the guardianship was a draconian ‘solution’ to a
‘problem’ largely manufactured by [Mother]†and suggests the probate court
could have adopted other approaches, such as mediation or joint
counseling. The probate court was under
no legal obligation to adopt such half-measures, particularly after three years
of relatively constant conflict, and Guardian cites no
obligation.
Guardian
also contends the probate court abused its discretion because the evidence
suggested Guardian would provide more frequent and continuing contact with
Mother than vice versa. Because Guardian
had squandered several years in which to demonstrate her ability to regulate
visitation successfully, this is a difficult argument to make
convincingly. In any event, there are
many considerations which factor into a “best interest†calculation, and we
find no abuse of discretion in the probate court’s decision not to give this
factor predominant weight.
Guardian
claims the conflict between the parties alone cannot provide the basis for
making a custodial change, citing F.T. v.
L.J. (2011) 194 Cal.App.4th 1. In
that case, which reviewed the denial of a move-away order for the child of
unmarried natural parents, the court held the trial court misapplied the proper
standard for ruling on such a motion by failing to consider the child’s best
interests, focusing instead on the reasons for the move and the potential
impact on the parent left behind, among other issues. (Id.
at pp. 21–24.) Contrary to Guardian’s
characterization of the case, the appellate court did not reverse the trial
court’s ruling because it focused only on one factor; it reversed because the
trial court focused on issues unrelated to the child’s best interests. In this case, the probate court
unquestionably understood its duty to address the minor’s best interests and
acted in furtherance of its understanding of those interests. Unlike the factors found improper in
to the minor’s best interests, for the reasons discussed above. The court did not terminate the guardianship
in order to address the conflict between the parties; it terminated the
guardianship in an effort to achieve peace for the minor, whose well-being was
disrupted by the conflict. To the extent
Guardian contends the change is not in the minor’s best interests, we find no
abuse of discretion in the probate court’s contrary determination.
G. The Absence of Neutral Third Party Testimony
Guardian
argues the probate court abused its discretion in terminating the guardianship
in the absence of testimony by neutral
professionals. She also faults the
court’s decisions to grant minor’s counsel’s request to withdraw in
anticipation of retirement in June 2011, prior to the final hearing, and to
deny the request for the appointment of a custody evaluator.
Guardian
first argues the probate court’s order terminating the guardianship lacked a
proper evidentiary basis because there was no testimony from a “neutral third
party†regarding the minor’s best interests.
Contrary to Guardian’s claim, the absence of such an evaluation did not
cause the court’s ruling to “rest[] on speculation.†As detailed above, the probate court presided
over two separate trials and spent two years mediating the disputes of the
parties, all of which generated a wealth of admissible evidence bearing on the
minor’s well-being. The probate court’s
ruling was well-grounded in this evidence.
Nor
do we find an abuse of discretion in the probate court’s decision to allow
minor’s counsel to withdraw and decline the request for appointment of a
custody evaluator. As Guardian
acknowledges, the court was under no legal obligation to appoint minor’s
counsel. Similarly, there was no legal
requirement of a custody evaluation; the decision is entirely within the
court’s discretion. (Fam. Code,
§ 3111, subd. (a).) Because of the
court’s long experience with the matter, it could properly conclude the
assistance of these professionals was unnecessary.
Guardian
also contends the probate court erred in failing to take the minor’s wishes
into account. (See Fam. Code,
§ 3042, subd. (a).) Because there
was no evidence introduced to support a finding the minor was “of sufficient
age and capacity to reason so as to form an intelligent preference as to
custody†(§ 3042, subd. (a)), the foundation for such testimony was
lacking. At seven years old, and
suffering under the demands of his two parental figures, it is by no means
self-evident the minor was in a position to offer meaningful testimony about
his custody wishes.
title="">[3] In any event, Guardian waived this argument
when she failed to raise it below.
H. “Irregularity†in the Proceedings
Finally,
Guardian contends she was denied due process because of “irregularity in the
proceedings.â€
Guardian
first argues the probate court violated her right
to due process by prejudging the termination decision, based on the court’s
comment when it granted the minor’s counsel’s request to withdraw as a result
of her impending retirement: “The
guardianship is over. The visitation is
proceeding, so I don’t know that . . . [¶] . . . [¶]
. . . the child needs any more attention by you.†We do not view this comment as evidence of a
prejudgment. The probate court had
already announced its intention to terminate the guardianship the prior March
if the summer experiment with Mother’s care proved successful. We take the court’s comment to refer to that
tentative decision. Consistent with its
ruling, however, the court waited until after the hearing in August to make a
final decision.
The
cases cited by Guardian in support of her argument generally involve the
premature termination of a proceeding, prior to the presentation of all
relevant evidence. (E.g.,
Cal.4th 1337, 1357–1358; In re Marriage of
Straczynski (2010) 189 Cal.App.4th 531, 539.) Regardless of the views expressed by the
probate court about the likely outcome of the termination proceedings in June,
the court waited until after the presentation of evidence at the August hearing
before making its final decision. Its
judgment was not legally premature.
Guardian
next claims the probate court improperly excluded rebuttal evidence regarding
disputes between her and Mother at the March 2011 hearing. We review a trial court’s exclusion of evidence
for abuse of discretion. (
of Los Angeles (2011) 200 Cal.App.4th 1267, 1281.) As the probate court explained at the time,
it had concluded the minor’s anxiety was being caused by the dispute between
the parties over the guardianship. The
exact nature of the conflicts and their source were, as the court suggested in
labeling them “minutiae,†of little relevance to its decision with respect to
the disposition of the guardianship. We
find no abuse of discretion in this conclusion.
In
any event, we find no prejudice in the exclusion of this evidence. Despite the probate court’s initial ruling,
Guardian was permitted to testify about some of the conflicts. Further, it is not likely the probate court’s
decision would have been different if Guardian had been permitted to tell her
side of the story regarding the remainder of these disputes. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The
probate court’s order terminating the guardianship is affirmed.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
name="_ftn1" title="">[1]
Although we refer to the trial court throughout as the “probate court,†the
judge who conducted this trial and subsequent contested proceedings, the
Honorable Joyce Cram, was at the time the presiding judge of the family court.
name="_ftn2" title="">[2] In
her reply brief, Guardian complains the probate court’s visitation rulings had
the effect of “impermissibly grant[ing mother] virtually all the rights of
legal parenthood.†A review of the
record reveals this to be undisciplined hyperbole, but even if true it would
have no bearing on the propriety of the probate court’s exercise of discretion
in terminating the guardianship.
