Marriage of Padden and Brown
Filed 10/13/10 Marriage of Padden and Brown
CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
In re Marriage of ROBERT PADDEN and KERRY BROWN.
2d Civil No.
B221848
(Super. Ct.
No. FL050374)
(San
Luis Obispo County)
ROBERT PADDEN,
Appellant,
v.
KERRY BROWN,
Respondent.
Robert Padden and Kerry Brown are divorced
parents with joint legal custody of their nine-year-old daughter,
Kathleen. Kathleen was born with fibular
hemimelia, a condition that resulted in one of her legs being shorter than the
other. There are two feasible and
mainstream surgical
treatments. One treatment involves a
"Symes amputation" of the foot of Kathleen's shorter leg and use of a
prosthetic device. The other does not
involve amputation but requires multiple surgeries to lengthen the shorter leg
and reduce growth of the other leg.
Based on medical advice, mother prefers the foot amputation. Based on medical advice from different
doctors, father prefers the treatment which does not require amputation.
After an extended and bitter dispute, mother
and father have been unable to agree on the proper treatment. As a result, the trial court modified the
original custody agreement to give mother sole authority to make the medical
treatment decision for Kathleen. Father
appeals that order, contending that the court erroneously failed to apply the
"changed circumstances" test in making its ruling or, alternatively,
that the court abused its discretion in applying that test. Father also claims a violation of his
constitutional rights as a parent. We affirm.
FACTS AND PROCEDURAL HISTORY
Kathleen and her twin sister Grace were born
in November 2000. Both children have
serious medical problems due to their premature birth, and both children have
undergone multiple corrective surgeries, and require close monitoring and
regular visits to their physicians and surgeons.
Mother and father married in June 2002. In March 2005, father filed a petition for
dissolution of marriage. A temporary
custody and visitation order was entered by stipulation which provided that
mother and father would have joint legal custody of the children, mother would
have sole physical custody, and father would have limited and supervised
visitation. In addition, mother obtained
a restraining order preventing father from having contact with mother or the
children, except for supervised visitation.
In a revised form, the restraining order remained in effect at the time
of this appeal.
On October 2006, the trial court entered a
final judgment of dissolution of marriage.
Consistent with the temporary order, the judgment awarded joint legal
custody of the children to both parents, sole physical custody to mother and a
limited right of supervised visitation to father. The judgment gave father the right to attend
medical appointments involving the children.
In September 2007, father requested an order
to show cause (OSC) seeking joint physical custody of the children,
modification of visitation, and other matters.
The trial court denied the requested relief. In its order, the trial court stated that the
attorney appointed to represent the children opposed any change in the existing
orders, and made findings that father is "disabled" by a mental or
emotional disorder, disease or injury "that limits his ability to read and
write and to comprehend complex concepts and instructions."
In March 2009, mother filed an emergency
request for an OSC to prevent father from attending upcoming medical
appointments for Kathleen. The court
granted mother's request and issued a temporary order giving mother sole legal
custody of the children "until the hearing to determine how the children's
special needs will be met."
On June 19,
2009,
father filed a motion for an order determining the proper course of medical
treatment for Kathleen, and mother joined in his request. On September 23, 2009, the trial court, on
its own motion, ordered that the "issues presented by the parties will be
determined by the court based upon the pleadings, declarations and points and
authorities currently on file and upon such other declarations the parties
believe the court should consider."
Also, "[t]he parties are invited to present declarations from the
children's health care providers or to take their depositions and present a
transcript of such proceedings."
Subsequently, both parents filed documentary evidence from Kathleen's
multiple health care providers.
In a November 13, 2009, order and findings of
fact, the trial court stated that it had informed the parties during a
telephone conference that "a decision about how Kathleen should be treated
would not be made by the court unless the option proposed endangered Kathleen's
life, was out of the mainstream of modern medicine or below the standard of
care for a person with Kathleen's problems. . . . [I]f both treatment options
are viable alternatives, then the court's decision would be simply to determine
which parent will make the choice . .
. if [the parents] are unable to agree."
The November
13, 2009, findings also described the two treatment options and summarized the
medical evidence before the court. The
court noted that one option is recommended by one of Kathleen's doctors and the
other option is recommended by another of Kathleen's doctors--but that neither
doctor is critical of the other's recommendation. The court found that both options "are
undeniably acceptable, mainstream treatments," and outcomes without
medical complications "appear to present no clinical difference in
functionality or the patient's mental health," but that both have risk
factors that "require careful consideration."
On December
11, 2009, the court issued its final order (December
11, 2009, order). The court ruled that
mother "will have sole legal custody of the children regarding their
medical care and treatment. [Father]
retains joint legal custody except for the above-referenced medical
issues. All other orders will remain in
full force and effect."
Father appeals the December 11, 2009, order.
DISCUSSION
Father contends that the trial court erred as
a matter of law by failing to apply the controlling "changed
circumstances" rule in making the December
11, 2009, order. Alternatively, father
contends that the court abused its discretion because there was no showing of a
significant change in circumstances. We
disagree. It is undisputed that the
"changed circumstances" test applies to the December 11, 2009, order because that order changes the initial custody
order in a material respect. We
conclude, however, that the trial court applied that test and did not abuse its
discretion.
All child custody decisions must be based on the child's best interest. (In re Marriage of Brown
& Yana (2006)
37 Cal.4th 947, 955.) The trial court has "the widest
discretion" in making an initial determination of custody but, after the court
has entered a permanent custody order, there must be a showing of significant
"changed circumstances" to support a modification of the order. (Id. at pp. 955-956; see
also In re Marriage of Burgess (1996) 13 Cal.4th 25, 37.) Under this rule, the court "'. . . should
preserve the established mode of custody unless some significant change in
circumstances indicates that a different arrangement would be in the child's
best interest.
. .
.'" (In re Marriage of LaMusga
(2004) 32 Cal.4th 1072, 1088.) There are no "bright line rules"
and each case must be evaluated on its own unique facts. (Burgess, at p. 39.) The
trial court may take into consideration medical and other
health needs as well as the behavior of a parent. (LaMusga, at p. 1094.) We review
custody orders by the trial court under the abuse of discretion test. (Burgess,
at p. 32.)
Here, the parents' persistent inability to agree
on a course of medical treatment essential to Kathleen's health and well-being
constituted a significant change in circumstance. Although Kathleen's condition and treatment
options were known generally before the initial custody order, the record does
not show that either parent had made a decision on future treatment. With the initial custody order, the
parents were given an extended period of time and authority to air their
differences, consult with one another, talk with doctors, advocate different
treatment options, and reach an agreement. Unfortunately,
the expectations underlying the initial custody order failed to occur. Mother and father are now in a state of conflict. Their ability to communicate on the matter of
Kathleen's medical treatment has deteriorated over time and they have become
more intractable. And, the record offers
no indication that the situation will improve or that the parents will ever be
able to reach an agreement.
Furthermore, the record supports the trial court's
decision to give mother rather than father sole authority to make the medical
decisions. The father's mental and
emotional problems are well documented in the temporary restraining orders and
the November 11, 2009, findings of fact. There is no doubt that father wishes the best
treatment for Kathleen, but the trial court's unchallenged findings necessarily
lead to the conclusion that the father's mental and emotional condition impairs
his ability to make sound medical decisions for Kathleen. The court did not abuse its discretion.
Father also contends he was
deprived of his constitutional rights as a parent. He relies upon Troxel v. Granville
(2000) 530 U.S. 57, 65-70, which held that a statute granting child visitation
rights to grandparents without deference to the parents infringed upon the
fundamental due
process right of parents to raise their
children.
Father's reliance on Troxel is misplaced. Troxel concerns the rights of
parents in disputes with nonparents. It
does not apply to custody disputes between
parents or give divorced parents a right to equal custody of their
children. (Enrique M. v. Angelina V. (2009) 174 Cal.App.4th 1148,
1157.) In a custody dispute, courts are
required to balance the rights of parents so as to resolve disputes in a manner
that serves the best interests of their children. (Id. at p. 1156.)
In this case, allowing the parents' stalemate to continue would not have
been in the best interest of Kathleen.
Under these circumstances, it was incumbent upon the trial court to give
one parent the responsibility and authority to make the final decision.
The judgment (order) is
affirmed. The parties shall bear their
own costs on appeal.
NOT TO BE PUBLISHED.
PERREN,
J.
We
concur:
YEGAN, Acting P.J.
COFFEE, J.
E.
Jeffrey Burke, Judge
Superior Court County of
San Luis Obispo
______________________________
Tardiff Law Offices and
Neil S. Tardiff for Appellant.
Kerry Brown, in pro.
per., for Respondent.
Publication courtesy of San
Diego free legal advice.
Analysis and review provided by Santee Property line attorney.
San Diego Case Information
provided by www.fearnotlaw.com
treatment of Kathleen.
