Cnty. of Riverside v. D.W.

• Decision Date: 13 March 2017
• Docket Number: E063439
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF RIVERSIDE, Plaintiff and Respondent, v. D.W., Defendant and Appellant. Guardianship of the Person of A.R., a Minor. K.L. Petitioner and Respondent, v. D.W., Objector and Appellant.

COUNTY OF RIVERSIDE, Plaintiff and Respondent, v. D.W., Defendant and Appellant.

Guardianship of the Person of A.R., a Minor.

K.L. Petitioner and Respondent, v. D.W., Objector and Appellant.

E063439

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

March 13, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.Nos. RIK1204837 & RIP1300853)

OPINION

APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Reversed.

D.W., in pro. per., and Grant Lowell Eddy for Defendant, Appellant and Objector.

No appearance by Plaintiff and Respondent County of Riverside.

No appearance by Petitioner and Respondent K.L. Defendant, appellant and objector D.W., referred to herein as father, appeals an order mandating visitation between his son, A.W.,¹ and K.L., A.W.'s former temporary guardian. Father contends that Family Code section 3105 and Probate Code section 1602, both of which provide courts with the discretion to order visitation between a child and a former guardian over the objection of the child's parent, if the court finds that visitation is in the best interest of the child, unconstitutionally interfere with his due process right to make decisions for his son.

We conclude that neither statute is facially unconstitutional, but that the trial court's application of the statutes did violate father's constitutional right because the trial court failed to apply the rebuttable presumption that father was acting in his son's best interest, as mandated by Troxel v. Granville (2000) 530 U.S. 57.

FACTUAL AND PROCEDURAL HISTORY

A.W.'s mother and his half sister, A.R., were the foster children of K.L.'s grandmother. After she was emancipated, A.W.'s mother lived a transient life, and A.R. resided primarily with K.L. since A.R. was about six years old. K.L. was granted legal guardianship of A.R. in January 2014. On April 29, 2014, K.L. filed a petition for guardianship of A.W., who was then almost three years old. K.L. stated that she had known A.W. since birth. She stated that A.W. had been living with her grandmother andaunt for about six months because of his mother's unstable life. K.L. had cared for A.W. on weekends during that period, and he had resided with her since February 2014.

The court issued letters of temporary guardianship on July 1, 2014. Neither father nor any other paternal relative had been given notice of the guardianship proceedings.

Father had filed an action to establish paternity, which was pending before K.L. filed the guardianship petition. An order declaring father to be A.W.'s father was entered on June 4, 2014. On July 11, 2014, father filed objections to the guardianship petition.

After a trial, the court denied the guardianship petition and revoked the letters of temporary guardianship. In the paternity action, father was declared A.W.'s father and was granted legal and physical custody of A.W. K.L. was granted alternate weekend visitation as a former guardian.

On January 6, 2015, father filed a motion for reconsideration of the visitation order contending that the court lacked jurisdiction to award visitation to a former temporary guardian over the objection of a child's parent. In supplemental points and authorities, he contended that awarding visitation over the parent's objection violated due process within the meaning of Troxel v. Granville, supra, 530 U.S. 57. (We discuss this case below.) After a hearing, the trial court denied the motion for reconsideration, finding that it had jurisdiction to award visitation to the former guardian pursuant to both Probate Code section 1602 and Family Code section 3105. The court then modified the visitation order, granting K.L. visitation the first weekend of each month, from 7:00 p.m. on Thursday through 4:00 p.m. on Sunday, with the option of a visit on the third weekend of the month upon 20 days' notice.

The formal order was entered on June 30, 2015. Father filed multiple notices of appeal from different orders. Ultimately, we determined that his notice of appeal from the June 30, 2015 order was the only operative notice of appeal. Father is the only party who filed a brief in this appeal.

LEGAL ANALYSIS

1.

PROBATE CODE SECTION 1602 AND FAMILY CODE SECTION 3105 APPLY TO

TEMPORARY GUARDIANS AS WELL AS PERMANENT GUARDIANS

Father contends that because K.L. was merely a temporary guardian whose petition for guardianship was ultimately denied, the court had no authority to grant her visitation over his objection. He contends that both Family Code section 3105 and Probate Code section 1602, which permit a court to order visitation between a child and a former legal guardian, are unconstitutional if they are applied to a temporary guardian.²

We have some difficulty grasping the basis of this contention because, as we discuss below, if the statutes suffer from the defect father asserts—i.e., that they unconstitutionally permit a court to override the right of a fit custodial parent to make decisions in the best interest of his or her child—it is irrelevant whether they are applied to a former permanent guardian or to a former temporary guardian. Although we will discuss father's contention as to the constitutionality of the statutes, we perceive that his actual complaint is that the trial court applied the visitation statues in an unconstitutional manner, not because it erroneously applied the statutes to a former temporary guardian but because it failed to accord any weight to his right to make decisions in the best interest of his child. As a starting point, however, we must determine whether either statute is intended to apply to a former temporary guardian. If neither statute is intended to do so, we need go no further to determine that the trial court erred.

We independently determine the meaning of a statute. (Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2016) 247 Cal.App.4th 284, 293.) "Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. If we find no ambiguity, we presume that the Legislature meant what it said, and the plain meaning of the language governs.[Citation.] If, on the other hand, the statutory language is unclear or ambiguous and permits more than one reasonable interpretation, we may consider various extrinsic aids to help us ascertain the Legislature's intent, including legislative history, public policy, settled rules of statutory construction, and an examination of the evils to be remedied and the legislative scheme encompassing the statute in question. [Citations.] In such circumstances, we select the interpretation that comports most closely with the apparent intent of the Legislature, with a view toward promoting, rather than defeating, the general purpose of the statute and avoiding an interpretation that would lead to absurd consequences. [Citation.]" (Department of California Highway Patrol v. Superior Court (2008) 158 Cal.App.4th 726, 735.)

Probate Code sections 1601 and 1602 provide procedures for the termination of guardianships, without specifying whether the guardianship is permanent or temporary. Probate Code section 2257, in contrast, expressly applies to the termination of temporary guardianships.³ From this, father infers that Probate Code section 1602 applies only topermanent guardianships. We note, however, that Probate Code section 2257 provides for the automatic termination of a temporary guardianship upon the happening of specified occurrences. Probate Code section 1601, in contrast, provides for termination of a guardianship when the ward attains the age of 18 years or when the court determines that the ward's best interest requires termination of the guardianship. Presumably, this could occur in the context of a temporary guardianship as well as a permanent one. This renders Probate Code section 1602 ambiguous to this extent. Similarly, Family Code section 3105 does not explicitly distinguish between temporary and permanent guardians. Arguably, this renders it ambiguous as well. Accordingly, we look to the legislative history of both statutes.

Probate Code section 1602 and Family Code section 3105 were enacted as part of the same legislation. (Stats. 2004, ch. 301 (Assem. Bill No. 2292), § 1 [Fam. Code, § 3105], § 2 [Prob. Code, § 1602].) The history of that legislation shows that its proponent was concerned about the effect of not providing for visitation, in appropriate cases, between children and former long-term, permanent guardians. The legislative history reflects a concern about abruptly severing ties between children and adults whohave served in a parental role over a significant portion of the child's life. (See, e.g., Assem. Com. of Judiciary, Analysis of Assem. Bill No. 2292 (2003-2004 Reg. Sess.) Apr. 20, 2004.) However, although the bill's author expressed his or her concern in terms of former permanent guardians (ibid.), the bill, as enacted, does not explicitly limit its effect to former permanent guardians. The bill author's individual motivation for proposing a bill does not necessarily reflect the intention of the Legislature as a whole in enacting it. When construing a statute, our "task is to ascertain the intent of the Legislature as a whole." (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062.) Generally, the motive or understanding of an individual legislator is not properly received as evidence of that collective intent, even if that legislator was the author of the bill in question. (Ibid.)

Temporary guardianships may be of short...