Nancy T. v. Corey Q.
Filed 12/31/12
Nancy T. v. Corey Q. 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
NANCY T. et al.,
Plaintiffs
and Appellants,
v.
COREY Q.,
Defendant
and Respondent.
A131991
(Contra Costa County
Super. Ct. No. D0803610)
S.Q.’s mother died in 2007. S.Q.’s father, Corey Q., now has sole
custody. Father’s relationship with
S.Q.’s maternal relatives is strained, at best.
The maternal relatives—grandmother and appellant Nancy T., great
grandmother Nelle F., uncle Anthony N., and aunt Linda N.—petitioned the
S.Q. The family court denied the
petition; we affirm.
Factual
and Procedural Background
In 2007, S.Q., then two years of
age, lived with her mother. S.Q.’s
mother, who had sole physical custody, died on September
23, 2007. Afterwards, there was no provision for
S.Q. She was placed briefly in foster
care. Then she resided with her maternal
uncle for several weeks until Child Protective Services contacted her
father. As of October 10-19, 2007, S.Q. was placed with her paternal
grandmother, after which father obtained custody by order of the
County Superior Court.
On August 1,
2008,
S.Q.’s maternal grandmother, great grandmother, aunt, and uncle filed a
verified petition with the family court seeking ordered visitation with S.Q.
under Family Code section 3102.
name="_ftnref1" title="">[1] They asserted each had forged a bond with
S.Q. such that ongoing visitation was in S.Q.’s best interest. They further asserted father had denied them
visitation.
On February
27, 2009,
the maternal relatives supplemented their petition with a motion for
visitation. The motion specified they
sought visitation with S.Q. from Friday night to Sunday night of the first,
third, and fifth weekends of every month.
The motion also specified they sought to have S.Q. on every New Year’s
Eve and New Year’s Day, the deceased mother’s birthday, half of summer break,
and half of other holidays (these on a rotating, odd year, even year schedule). In addition, the maternal relatives’
supporting declaration elaborated on their reasons for lacking trust in
father—that he walked out on mother and S.Q. when S.Q. was one, he had been
imprisoned at the time of S.Q.’s birth, and he had a violence issue and had
threatened to kill mother.
Father opposed the petition and
motion, stating in a declaration he could allow the maternal grandmother and
S.Q. to enjoy a relationship, but only so long as he, as parent, retained
discretion to control the relationship’s development. He was concerned the maternal grandmother was
making unreasonable demands for time with S.Q. and disparaging him to S.Q. Father admitted he had, in the past, been
convicted of “unruly behavior and other crimes†but said he had completed a
year-long domestic violence training program, and asserted most of the maternal
relatives’ accusations were unfounded and arose from an attempt to steal S.Q.
away from him. He also pointed out
grandmother, herself, had been in federal prison on drug charges from before
S.Q.’s birth, having filed her section 3102 petition while incarcerated but
with the prospect of release within several months.
A confidential mediation report
prepared April 28, 2009, recounted the parties’ stories and positions and made
three recommendations: (1) prohibit derogatory comments about relatives in
front of the child; (2) prohibit discussions of family court litigation in
front of the child; and (3) father and maternal relatives should keep each
other updated on their contact information.
The mediator did not recommend court-ordered visitation.
After several delays, the family
court held a hearing on visitation on March 16, 2011. Grandmother attended and testified mother had
brought S.Q. to the Dublin prison facility “[a]lmost every weekend†to visit
her until mother died in 2007. Then, the
maternal uncle brought S.Q. for two weekend visits and mother’s memorial
service, which grandmother attended.
After the memorial service, grandmother had no physical contact with
S.Q. until after leaving prison in 2010, over three years later, but she would
send notes and gifts to S.Q. Grandmother
last saw S.Q. in March 2010 when father brought S.Q. to a party. After that, there was some phone contact, but
grandmother accused father of trying to stop that avenue of communication. When asked why ordered visitation would be in
S.Q.’s best interests, she stated “it’s really important for [S.Q.] to know her
mother through us.†Grandmother said she
wanted to work with father to repair the tension between them.
Uncle testified he and his daughter
and mother and S.Q. would meet every few months before mother’s death. Afterwards, he had custody of S.Q. for parts
of September and October 2007. He only
saw S.Q. again at the March 2010 party.
Aunt—not uncle’s wife, but mother’s half-sister—saw S.Q. at some family
functions. She last saw S.Q. at the 2007
memorial service.
Father testified he was not trying
to keep S.Q. from grandmother, but trying to deal with what he viewed as
grandmother’s intrusiveness, and her demands for visits with S.Q. on her
terms. Father, for example, testified
grandmother regularly demanded he bring S.Q. to her home in Livermore. As another example, father stated the March
2010 party was supposed to be a small, quiet meeting, not a big party that
could disorient S.Q.; though grandmother said father knew it was going to be a
big gathering and could have rescheduled.
Father also testified he wanted to wait for S.Q. to get older so she
could make her own choices about how to
relate to grandmother. He said he
was not preventing contact and was allowing phone calls.
The court denied the maternal
relatives’ petition from the bench and issued a written order on March 18,
2011. The court denied visitation to the
great grandmother because she failed to appear for the hearing. It denied visitation to the aunt and uncle
because they had no recent contact with S.Q.
As to the grandmother, it found visitation was not in the child’s best
interests because she had been incarcerated in federal prison at the time of
S.Q.’s birth through 2010 and had minimal contact with S.Q. after S.Q.’s mother
died; the grandmother displayed hostility toward father in pleadings and in
court that, if expressed during visits with S.Q., could harm the child; the
grandmother evidenced little knowledge of the needs of a child of S.Q.’s age;
and the father was willing to facilitate visits if grandmother would change her
actions and attitude.
The grandmother filed a
Discussion
Family Code section 3102
provides: “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.â€
(§ 3102, subd. (a).) Section
3102 may not, however, be read to indiscriminately deprive parents of their
right to raise their children as they see fit.
(See Troxel v. Granville
(2000) 530 U.S. 57.) A parent’s death
does “not imbue†her surviving relatives with her “parental rights or diminish
[a surviving spouse’s] parental rights.â€
(Kyle O. v. Donald R. (2000)
85 Cal.App.4th 848, 863 (Kyle O.).) And “[n]othing in the unfortunate
circumstance of one biological parent’s death affects the surviving parent’s
fundamental right to make parenting decisions concerning [his or her] child’s
contact with†the deceased spouses’ relatives.
(Ibid.)
Thus, courts generally presume a
surviving parent, if fit, makes correct visitation decisions. (Rich
v. Thatcher (2011) 200 Cal.App.4th 1176, 1180-1181 (Rich); Kyle O.,
presumption only with clear and convincing evidence that denial of visitation
would be detrimental to the child. (
In addition, a court may not presume
“that grandparent-grandchildren relationships always benefit children.†(Zasueta
v. Zasueta (2002) 102 Cal.App.4th 1242, 1253-1254, italics omitted.) “ ‘In an ideal world, parents might always
seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far
from perfect, and in it the decision whether such an intergenerational
relationship would be beneficial in any specific case is for the parent to make
in the first instance. And, if a fit
parent’s decision . . . becomes subject to judicial review, the court must
accord at least some special weight to the parent’s own determination.’ †(Id.
at p. 1253, italics omitted, quoting
The decision to grant or deny
visitation under section 3102 is discretionary, and we review it under the
deferential abuse of discretion standard.
(Rich, supra, 200 Cal.App.4th at p. 1182.) “ ‘ “[E]valuating the factual basis
for an exercise of discretion is similar to analyzing the sufficiency of the
evidence for the ruling . . . . Broad
deference must be shown to the trial judge.
The reviewing court should interfere only ‘ “if [it] find[s] that under
all the evidence, viewed most favorably in support of the trial court’s action,
no judge could reasonably have made the order that he did.†’
†’ †(Id. at p. 1181) “
‘ “The burden is on the party complaining to establish an abuse of
discretion, and unless a clear case of abuse is shown and unless there has been
a miscarriage of justice a reviewing court will not substitute its opinion and
thereby divest the trial court of its discretionary power.†[Citations.]’
[Citations.]†(
With
this background, we consider grandmother’s arguments.
First,
grandmother claims the family court judge acted improperly by accepting a copy
of the father’s new cookbook, which grandmother claims father offered the judge
at the conclusion of a February 15, 2011 hearing. According to grandmother, the family court
judge should have recused herself under Code of Civil Procedure section
170.3. But grandmother does not point to
any record evidence tending to show this interaction ever occurred. A review of the February 15, 2011, hearing
transcript discloses nothing of the sort.
Appellant must provide an adequate record demonstrating error or face
defeat on appeal. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121,
132.) In any event, grandmother cannot
raise Code of Civil Procedure section 170.3 for the first time on appeal. That section requires a complaining party to
file a written, verified objection in the trial court (Code Civ. Proc.,
§ 170.3, subd. (c)(1)), and states the “determination of the question of
the disqualification of a judge is not an appealable order and may be reviewed
only by a writ of mandate . . . within 10 days after . . . of the court’s order
determining the question of disqualification†(id., § 170.3, subd. (d); People
v. Panah (2005) 35 Cal.4th 395, 444 [not reviewable except by writ]). Grandmother neither filed an objection in the
trial court nor sought writ review. We
cannot consider her complaint now.
Second,
grandmother claims the family court excluded her evidence that S.Q. and she had
formed a close bond, namely a collection of photographs showing S.Q. with her
maternal relatives. Although the family
court declined to view all of the photographs during the visitation hearing, it
invited grandmother to select a page from her album which it would, and did,
review. Given its review of some photographs
and the availability of grandmother, aunt, and uncle to offer detailed
testimony about the relationship they each formed with S.Q., the trial court
was within its discretion to exclude the remaining photos under Evidence Code
section 352. (See People v. Michaels (2002) 28 Cal.4th 486, 532 [“photographic
evidence is often cumulative of testimonial evidenceâ€].)
Next,
grandmother advances arguments on behalf of the aunt and uncle and on behalf of
the great grandmother. We reject these
arguments in the first instance because only grandmother has filed a notice of
appeal, and only grandmother has signed a brief on appeal. Although grandmother purports to represent
the other maternal relatives, she is not a lawyer, and she may not do so. (Roddis
v. All-Coverage Insurance Exchange Automobile & Fire (1967) 250
Cal.App.2d 304, 311 [“A person who is not an attorney authorized to practice
law in this state cannot represent anyone other than himself.â€]; cf.
907, 914 [juvenile not entitled to have father assist him in his defense or
represent him since father was not member of the bar].)
Regardless,
grandmother’s arguments concerning the other maternal relatives are
meritless. As to the aunt and uncle,
grandmother contends the family court erred when it denied them visitation
based on their indisputable lack of recent contact with S.Q. Subdivision (b) of section 3102, however,
between the [family member] and the child†when the family member is “other
than a grandparent of the child.†As to
the great grandmother, grandmother contends the trial court should not have
“dropped†her from the case when she did not appear in court. Yet, grandmother herself explains the problem
in her brief, noting the great grandmother “is 78 years old and not well enough
to endure the all-day trip to court.â€
The family court was well within its discretion to conclude that
ordering visitation with a person facing such personal challenges was not in
S.Q.’s best interests.
Finally,
grandmother asserts the family court did not allow her to present all her
evidence, did not fully credit her testimony, and did not properly discredit
father’s testimony. Yet the court,
although often interjecting questions to direct the flow of testimony, did not
prevent grandmother from making her case.
Grandmother complains, for example, she was not allowed to present
evidence of father’s alleged unfitness, but she does not adequately explain how
the court stopped her, or, put another way, she does not point to an instance
in which she tried to offer this testimony and the family court refused
it. (See Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1387
[“evidentiary objections cannot be raised for the first time on appealâ€];
186 Cal.App.4th 286, 329 [“failure to make an adequate offer of proof
precludes consideration of the alleged error on appealâ€].) Further, she, in her brief, makes accusations
against father, presumably to support her unfitness assertion, but does so
without supporting those accusations with citation to the appellate record.
v. Avis Rent A Car System, Inc., supra,
21 Cal.4th at p. 132 [adequate record required on appeal].) Moreover, the family court, as trier of fact,
was the arbiter of credibility. (See
1439, 1452-1453.) The family court
appears to have credited father’s testimony about the maternal relatives’
interference with his parenting and the benefits and possibility of a less-structured
approach to visitation. As a court of
review, we do not reweigh the evidence and “will not disturb this credibility
determination†on appeal. (
We
see no abuse of discretion in the trial court’s denial of visitation
orders.
Disposition
The
order denying visitation is affirmed.
Father shall recover costs on appeal.
_________________________
Banke,
J.
We
concur:
_________________________
Marchiano,
P. J.
_________________________
Margulies,
J.
references are to the Family Code unless otherwise indicated.
a DVD she “would have presented to the Court†with videos father has allegedly
recorded and published on YouTube that, she claims, take a pro-drug and anti-law-enforcement
tone. But there was no mention of this
DVD in the proceedings below. If
circumstances materially change or new evidence, truly unavailable at the time
of grandmother’s petition, comes to light, we see nothing in section 3102
prohibiting a subsequent petition based upon these changed circumstances or new
evidence. At the same time, we caution
successive petitions attempting to rehash the evidence that was before the
court would be improper.
