Opinion
H043093
10-24-2017
L.T., Plaintiff and Respondent, v. C.G., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. PA14002)
Appellant C.G., paternal grandmother of M., appeals from an order granting the motion of respondent L.T., mother of M., to "unjoin" appellant as a party from the family law case. Appellant contends that the trial court's order was based on erroneous standards of law and constituted an abuse of discretion. We affirm.
I. Factual and Procedural Background
Respondent and G.G. are the parents of M., who was born in August 2007. In July 2010, respondent filed a petition to establish parental relationship. She also sought sole legal and physical custody of M. In September 2010, G.G. filed a petition to establish parental relationship in which he sought joint legal custody and sole physical custody of M. G.G. also sought to prevent an alleged registered sex offender, who was respondent's boyfriend at that time, to be in M.'s presence. Shortly thereafter, respondent filed an amended declaration in which she summarized the history of the parties' custody of M. from birth through September 2010. In October 2010, G.G. filed an amended responsive declaration to order to show cause in which he disputed respondent's timeline of M.'s living arrangements. He also summarized his, appellant's, and the paternal grandfather's involvement in M.'s care.
G.G. is not a party to this appeal.
Following a hearing in October 2010, the trial court ordered supervised visitation for G.G. for two hours per week. A month later, respondent and G.G. stipulated, among other things, that G.G. would complete eight weeks of anger management counseling, and G.G. would have two visits, which would be supervised by appellant, for two hours per week or one visit for four hours per week. The court also found that paternity had been established pursuant to stipulation.
In December 2010, the court ordered joint legal custody and set forth the parenting plan based on an agreement that respondent and G.G. had reached in mediation.
In April 2011, appellant submitted a declaration expressing her concern for M.'s "emotional and physical well being" and accused respondent of using M. "as a pawn in [her] attempt to continue to control and manipulate the custody process." Appellant also attached documents relating to respondent's former boyfriend's criminal history involving sexual offenses with a minor.
In April 2011, the court referred respondent and G.G. to Family Court Services for an evaluation and ordered G.G. to have professionally supervised visits for two hours per week and the paternal grandparents to visit during one of those two hours. Based on interviews with the parties, respondent's boyfriend's parole officer, and appellant as well as a summary of G.G.'s criminal and substance abuse history, the Family Court Services evaluator concluded: if respondent had contact with her former boyfriend, it put M. at risk; given G.G.'s recent arrest and substance abuse, she could not recommend unsupervised parenting time for G.G.; and it appeared respondent had done "a good job" with M.
In May 2011, G.G. submitted a letter to Family Court Services regarding the dismissal of his criminal case. G.G. also requested joint legal and physical custody of M.
In June 2011, the trial court temporarily adopted the recommendations in the Family Court Services evaluation pending further hearing. The trial court ordered that respondent have sole physical and legal custody of M. and that G.G. have professionally supervised visitation for two hours per week to include at least one hour with the paternal grandparents.
According to appellant, G.G. has not participated in this litigation since June 2011.
In January 2012, appellant filed a motion seeking an order joining her to the proceedings and a request for grandparent visitation under Family Code section 3103. The order granting joinder is not included in the record on appeal. According to appellant, no such order is in the trial court file. However, the parties and the trial court have treated appellant as a party.
All further statutory references are to the Family Code unless stated otherwise.
In March 2012, respondent and appellant stipulated to a temporary visitation order. They agreed, among other things, that appellant would have a visit with M. every other week for two to five hours and appellant would ensure that G.G. did not participate in the visit.
After respondent sought an order to show cause to modify visitation, the trial court ordered the parties to child custody recommending counseling. In August 2012, the child custody recommending counselor from Family Court Services recommended that appellant have professionally supervised visits every other week for three hours at appellant's expense. The trial court adopted the recommendation.
In October 2012, respondent brought a motion for reconsideration. She submitted a declaration in support of her motion in which she stated that M. had stated that he did not want visitation with appellant.
In November 2012, appellant sought a temporary emergency court order in which she sought, among other things, three hours of professionally supervised visitation per week. Temporary relief was denied pending a hearing on November 29, 2012. The day before the hearing, respondent and appellant stipulated that visitation between appellant and M. would be supervised. The motion was taken off calendar.
In February 2013, the trial court issued an order to show cause for contempt. Appellant submitted an affidavit in which she alleged that respondent had violated the September 2012 order 13 times.
In March 2013, respondent requested an order terminating appellant's right to visitation. According to respondent's declaration, M. had stated that appellant and the paternal grandfather had used corporal punishment and that he did not want to see appellant because she called respondent derogatory terms. Respondent also stated that appellant was aware of G.G.'s severe physical violence against her and appellant attempted to cover it up. Appellant's conduct with M. indicated to respondent that she had not changed and it was not in M.'s best interest to be with her.
Following a hearing in June 2013, the trial court found that there was a bond between M. and appellant and thus it was in his best interest to have a relationship with her. However, the trial court found that it was currently in M.'s best interest to suspend visitation between M. and appellant for nine months, unless M.'s therapist indicated it was in M.'s best interest to resume visits or M. requested a visit. The trial court also found that respondent had violated the visitation order and charged her with one count of contempt.
In May 2014, the trial court adopted the recommendations of the child custody recommending counselor and ordered: respondent to have temporary sole legal and physical custody of M.; respondent to obtain therapy for M. with a therapist who had knowledge of reunification therapy; and appellant to be included in reunification therapy at the recommendation of the therapist.
On October 17, November 10, and December 29, 2014, a hearing was held. Appellant's counsel stated that the issue regarding whether respondent was a fit parent had been withdrawn. Thus, the only issue was whether appellant could rebut the presumption under section 3104, subdivision (f) that grandparent visitation was not in the child's best interest when a parent objected. At the conclusion of the hearing, the trial court discussed its reasons for rejecting testimony by one expert witness and accepting that of other witnesses. As to appellant's testimony, the trial court found that it was not credible. The trial court also stated: "I don't know if the record can sufficiently reflect the concern that the Court has. [Appellant] is seething with hatred for [respondent]. If she can not [sic] control herself in this environment, I cannot imagine what she does when people are not watching her. And this cannot be in [M.'s] best interest, to be exposed to someone who is consistently, repeatedly, and in such extremities critical of his mother. She testified she never denigrated [respondent]. And I had example after example throughout the file, and each response was, 'They're lying,' and 'she didn't do that.' "
Section 3104, subdivision (f) provides: "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 currently no operative custody order objects to visitation by the grandparent."
On January 12, 2015, the sentencing hearing on contempt and attorney's fees was held.
On March 12, 2015, the orders regarding visitation, contempt, and attorney's fees were filed. As to visitation, the trial court's order states in relevant part: "The Court finds that [appellant] has failed to meet her burden of proof and has failed to rebut the presumption that [respondent], as the child's mother, makes fit decisions regarding the child. [¶] . . . The Court specifically finds that [appellant] cannot control her continual extreme and derogatory comments about [respondent] that she makes to the child, and these comments are detrimental to him. [¶] . . . The Court finds that it is in the child's best interest not to have any further contact with [appellant]." Appellant's request to reconsider reunification therapy for the child was denied. The trial court also ordered respondent to perform 10 hours of volunteer service and awarded attorney's fees of $24,587.07 to respondent.
On May 15, 2015, appellant sought to set aside the orders made in January 2015. Appellant subsequently took the matter off calendar.
On September 22, 2015, the trial court held a hearing on respondent's motion to unjoin appellant.
On October 30, 2015, the trial court's order was filed. Respondent's motion to unjoin appellant was granted. The trial court found: appellant was joined due to an interest in visitation; a trial occurred; respondent was found to be a fit mother who should decide if visitation would occur; and the issues that caused appellant to be joined were resolved.
On November 30, 2015, appellant filed a timely notice of appeal from the October 2015 order.
Appellant also purported to appeal from the March 12, 2015 orders. Appellant acknowledges that she did not file a timely appeal from this order.
II. Discussion
Pursuant to section 2021, "the court may order that a person who claims an interest in the proceeding be joined as a party to the proceeding in accordance with rules adopted by the Judicial Council . . . ." (§ 2021, subd. (a).) California Rules of Court, rule 5.24 states in relevant part: "A person who claims or controls an interest in any matter subject to disposition in the proceeding may be joined as a party to the family law case only as provided in this chapter." Rule 5.24(c)(2) defines which persons may seek joinder, including "[a] person who has or claims custody or physical control of any of the minor children subject to the action, or visitation rights with respect to such children . . . ." Rule 5.24(e)(1)(A) provides that "[t]he court must order that a person be joined as a party to the proceeding if the court discovers that person . . . claims custody or visitation rights with respect to any minor child . . . of the relationship."
All further rule references are to the California Rules of Court.
Here, appellant was properly joined as a party under rule 5.24, because she claimed visitation rights to M. However, once appellant's claim to visitation with M. had been fully litigated and resolved against her, the trial court properly granted respondent's motion to remove appellant from the family law case.
Appellant, however, contends that the order to unjoin her from the case was based on erroneous standards of law. Noting that the trial court had ordered that she would not be entitled to visit M. without respondent's permission, appellant first claims that the trial court was required to consider other factors.
Appellant deferred argument in her opening brief on two issues until completion of the augmented record. These two issues are: whether the June 11, 2013 ruling was res judicata; and whether another judge had authority to reconsider the June 11, 2013 ruling. After appellant's motion to augment the record was granted, she failed to file a supplement to her opening brief. Accordingly, these arguments have been waived. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 538.)
Appellant concedes that her motion for joinder was based solely on her claim in visitation with M. But she now argues that she has "a recognized interest in maintaining her status as a party to the instant case so that she can participate in a proceeding to determine whether a proposed step-father adoption is or is not in [M.'s] best interest." She also argues that she had an interest in telephone, e-mail, or correspondence contact with M. as well as an interest in receiving information about him. The express language of rule 5.24 does not support her argument. Rule 5.24 requires joinder in a family law case of any person who claims custody or visitation rights. It does not mention interests in a possible stepparent adoption, in other forms of contact besides visitation, or in receiving information about the child.
Appellant's reliance on Fenn v. Sherriff (2003) 109 Cal.App.4th 1466 (Fenn) is misplaced. In Fenn, the grandparents sought visitation under section 3102, which authorizes the trial court to order visitation when one of the parents is deceased if it is in the child's best interest. (Fenn, at p. 1473.) The father opposed visitation and argued that since he had remarried and his wife had adopted the children, section 3104, which limits grandparent visitation to specific circumstances, was applicable. (Fenn, at pp. 1473-1474.) The Fenn court concluded that the limitations set forth in section 3104 did not apply to grandparents who sought visitation under section 3102. (Fenn, at pp. 1474-1476.) The Fenn court did not consider whether a grandparent was entitled to remain a party in a family law proceeding in which the issue of visitation had been resolved. "[C]ases are not authority for propositions not considered therein." (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372.)
Appellant next argues that "a custodial ("fit") parent does not have conclusive authority to determine whether grandparent shall visit child." (Boldface & capitalization omitted.)
Here, in explaining why it was granting the motion to unjoin appellant, the trial court stated: "At trial, [respondent] was found to be a fit mother who shall decide if visits between the mother and [appellant] shall occur." Based on this statement, appellant claims that the trial court erred when it denied visitation to her. However, the trial court denied visitation by appellant in its March 2015 order. As appellant has acknowledged, she did not file a timely appeal from that order. (Rule 8.104.) "The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Accordingly, since appellant did not file a timely appeal from that order, this court lacks jurisdiction to consider the issue of visitation.
For the same reason, this court lacks jurisdiction to consider appellant's contention that grandparents have a substantive due process right under both the California and U.S. Constitutions to visitation with their grandchild. --------
Appellant also contends that the trial court abused its discretion in granting the motion to unjoin her as a party. Noting that G.G. is no longer participating in the case, she claims that "[i]f the paternal line is to be represented it must be by a paternal grandparent." She also portrays respondent in a negative light and asserts that "there is much reason to believe the [M.] would be served by having a second party on the watch." Since the issue of visitation was resolved against appellant, the trial court did not err in concluding that she was no longer entitled to the status of a party in the case.
III. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.