Guardianship of A.R. CA5

Filed 1/19/23 Guardianship of A.R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
Guardianship of A.R, a Minor.
OCTAVIO LOPEZ, F083167
Petitioner and Appellant, (Super. Ct. No. 21PR-00140)
v.
OPINION
CONNIE HERNANDEZ et al.,
Objectors and Respondents.
THE COURT*
APPEAL from an order of the Superior Court of Merced County. Donald J.
Proietti, Judge.
Octavio Lopez, in pro. per., for Petitioner and Appellant.
No response for Objectors and Respondents.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Smith, J.
In this second appeal brought by appellant Octavio Lopez1 against the same party,
he challenges the trial court’s decision to deny him guardianship over a child, and/or
visitation as a stepgrandparent.2 For the reasons presented below, we affirm the order
issued by the trial court.
PROCEDURAL AND FACTUAL SUMMARY
On May 4, 2021, appellant filed a petition asking to be appointed guardian for the
youngest daughter of respondent Connie Hernandez (mother). As part of the petition,
appellant alleged he used to live with the parents of the child and during that time he was
the primary caregiver for the child. Appellant further alleged the parents were not fit to
care for the child, and that despite his strong bond with the child, he was being prevented
from seeing the child. Appellant also stated his desire to parent the child, and eventually
adopt her. In a summary attached to a declaration filed with the court, appellant
explained his relationship with mother’s family and at least two of her children. The
attachment also explained in detail how he would care for the child who is the subject of
the petition.
Following a hearing on May 10, 2021, the trial court denied the petition without
prejudice, but set the matter for another hearing in July 2021, and asked child protective
services (CPS) to conduct a nonrelative guardianship investigation before the next
hearing. The minute order also stated the child is currently living with her parents and
identifies appellant as a “former Step-Grandfather.” The order asking CPS to conduct a
nonrelative guardianship investigation was rescinded on May 13, 2021. CPS determined
the matter did not meet state requirements for intervention.
1 In the prior appeal, appellant appears as Octavio Lopez Mendoza.
2 On this court’s own motion, we take judicial notice of the record on appeal in
Hernandez v. Mendoza, case No. F083011 pursuant to Evidence Code sections 452,
subdivision (d) and 459.
2.
On May 10, 2021, mother filed a “Request for Domestic Violence Restraining
Order,” alleging appellant posed a threat to her and her daughters. This proceeding was
the subject of the prior appeal referenced above. Mother listed appellant as her “mother’s
ex-husband” in the request for the restraining order. In his response, appellant stated he
and grandmother were never married but were in a long-term relationship while living in
Mexico. A temporary restraining order was issued on May 11, 2021, directing appellant
to, among other things, stay away from mother and her two daughters until the hearing
scheduled for June 2, 2021. Following the June hearing, the trial court granted the
request for a protective order in favor of mother and her two daughters, and against
appellant, for a period of three years.
On June 14, 2021, appellant added new information to the petition he filed asking
to be appointed guardian. Appellant now also sought “grand parental visitation rights,”
due to his role as the “De Facto” parent of the child.
Following a hearing held on July 9, 2021, the trial court denied appellant’s request
for a guardianship, and the request for court-ordered visitation as a grandparent. The
court specifically noted that following an investigation, CPS had no concerns the child
was in danger, or that her current placement with her parents was detrimental. Mother
and the child’s father, Victor Rodriguez (father), stated during this hearing that appellant
was not a stepgrandparent of the child, and that they had recently obtained a protective
order against appellant for three years.3 The court took judicial notice of this protective
order.
Appellant filed a notice of appeal challenging the order denying his petition for
guardianship and grandparent visitation. Respondent has not filed a responsive brief or
made any appearance in this appeal.
3 This is the same protective order that was the subject of the prior appeal.
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DISCUSSION
I. A Guardianship Is Not Warranted in This Case
“A relative or other person on behalf of the minor, … may file a petition for the
appointment of a guardian of the minor.” (Prob. Code, § 1510, subd. (a), emphasis
added.)
“In considering an application for appointment of a guardian, however, a
court must also consider the right of a parent to the care and custody of his
or her children. [Citation.] California law presumes a parent is competent
to care for his or her own children. For almost a century, our state’s law
has provided: ‘In accordance with the general presumption in favor of
competency, a parent is presumed to be competent to discharge the duties
of guardianship in the absence of an affirmative showing to the contrary.
[Citations.]’ ” (Suleman v. Superior Court (2010) 180 Cal.App.4th 1287,
1296 (Suleman).)
The right of parents to make decisions about raising their own children has been
recognized as a matter of federal due process. (Suleman, supra, 180 Cal.App.4th at
p. 1296.)
The Suleman court addressed the question of standing when a petition for
guardianship is filed by someone other than a relative of the minor. Specifically, for
someone other than a parent to have standing to pursue guardianship over a child they are
not related to, they must provide actual information that is sufficient to warrant a trial
court’s intervention. (Suleman, supra, 180 Cal.App.4th at p. 1299.) The court must then
investigate the information to determine its impact on the best interest of the child.
(Ibid.) Mere speculation or allegations about possibly inappropriate activity or potential
dangers to the child will not be enough. (Id. at p. 1302.)
We cannot simply apply this legal standard without acknowledging an obvious
impediment to appellant’s request to become the guardian for mother’s youngest
daughter. Appellant is legally prohibited from coming into contact with mother and her
daughters under the terms of the domestic violence protective order issued in June 2021.
4.
The allegations made by appellant that the child is living in a harmful environment repeat
the allegations he made in opposition to the request for a protective order, which were
already rejected by the trial court. Moreover, while the record suggests the initial CPS
investigation ordered by the court was rescinded, both the minute order and the transcript
indicate CPS did in fact investigate, concluding the child was not at risk of being harmed
in her current placement with her parents.
Based on the facts presented at the July 2021 hearing, the trial court had an
adequate basis for denying appellant’s guardianship petition.
II. Appellant Was Not Entitled to Any Visitation as a Grandparent
After filing the initial guardianship petition, appellant amended it to add a separate
request that he be granted visitation as a “step grandfather.” While there is no evidence
in the record proving appellant was ever considered a grandparent in any form, the
standard for obtaining this type of visitation would have been difficult for appellant to
meet.
A grandparent’s right to court-ordered visitation with a grandchild is purely
statutory. (In re Marriage of Harris (2004) 34 Cal.4th 210, 219.) Generally, a request
for visitation by a grandparent must be brought during proceedings seeking the
dissolution of marriage, legal separation, or when one party to the marriage seeks
exclusive custody of the child. (Fam. Code, §§ 3021, 3103.) Under Family Code
section 3104, subdivision (b)(1), a petition for visitation by a grandparent may also be
brought when the parents are not married or are living “separately and apart on a
permanent or indefinite basis.” Family Code section 3104, subdivision (f), however,
further warns courts considering visitation orders for grandparents:
“There is a rebuttable presumption affecting the burden of proof that the
visitation of a grandparent is not in the best interest of a minor child if the
parent who has been awarded sole legal and physical custody of the child in
another proceeding, or the parent with whom the child resides if there is
5.
currently no operative custody order objects to visitation by the
grandparent.” (Fam. Code, § 3104, subd. (f).)
It should be noted, the statutory scheme that governs child custody decisions in California
expresses a strong policy preference for the rights of a parent over those of a nonparent.
(Fam. Code, §§ 3040, 3041.)
In a case considering the constitutional right of parents to make decisions for their
child, this court concluded a parent’s decision to oppose a formal order granting visitation
to a grandparent must be given deference. (Zasueta v. Zasueta (2002) 102 Cal.App.4th
1242, 1253 [discussing the fundamental nature of parental rights presented in Troxel v.
Granville (2000) 530 U.S. 57].) To overcome the presumption that parents are acting in
the best interest of their child, a grandparent must prove by clear and convincing
evidence that the denial of visitation is not in the best interest of the child or would be
detrimental. (See Ian J. v. Peter M. (2013) 213 Cal.App.4th 189, 205–206, disapproved
on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010.)
First, there is no evidence in the record appellant is a grandparent or even a
stepgrandparent. Furthermore, appellant cannot overcome the fact that both parents
object to him having any contact with their daughter, let alone visitation. Their
objections were formalized when mother sought and obtained a protective order against
appellant that is set to stay in place for a period of three years. The trial court’s denial of
appellant’s request for grandparent visitation is supported by the record.
DISPOSITION
The judgment is affirmed. Appellant is awarded no costs in this appeal.
6.