Ed H. v. Ashley C.

• Decision Date: 24 August 2017
• Docket Number: D070346
• Citation: 14 Cal.App.5th 899,221 Cal.Rptr.3d 911
• Court: California Court of Appeals Court of Appeals
• Parties: ED H. et al., Appellants, v. ASHLEY C., Respondent.

14 Cal.App.5th 899

221 Cal.Rptr.3d 911

ED H. et al., Appellants,

v.ASHLEY C., Respondent.

D070346

Court of Appeal, Fourth District, Division 1, California.

Filed August 24, 2017

Law Office of Patrick McCrary and Patrick L. McCrary, El Cajon, for Appellants.

Bruce W. Cozart, La Mesa, for Respondent.

O'ROURKE, J.

Ed and Yvonne H., paternal great-grandparents, appeal from an order denying their request for joinder and petition to seek visitation with their great-grandchildren. Ed and Yvonne's primary contention on appeal is that the court erred in finding they lacked standing to join as parties seeking visitation. Specifically, they argue the court erred by determining that Family Code ¹ sections 3103 and 3104, which allow a court to grant visitation rights to grandparents if certain conditions are met, do not permit great-grandparent visitation. Alternatively, Ed and Yvonne contend the court erred by not considering that their grandson, the father of the great-grandchildren, consented to and joined in their request for visitation, and by not considering whether they had standing as psychological or de facto parents. We conclude that the Legislature did not intend section 3104 of the grandparent visitation statutes to authorize great-grandparents to petition for visitation, and thus the court did not err by concluding Ed and Yvonne lacked legal standing to seek visitation. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Ashley C. and Zachary H., whose marriage was dissolved in 2014, have two children together: H.H. and J.H. (together, the great-grandchildren). Ashley and H.H. lived with Ed and Yvonne for approximately three years, from about August 2009 to July 2013. Once J.H. was born in 2010, he also lived with Ed and Yvonne until July 2013. During this time, Ed and Yvonne helped care for the great-grandchildren. After Ashley and the great-grandchildren moved out of Ed and Yvonne's house, Ed and Yvonne would periodically visit them.

In September 2013, Ashley petitioned for dissolution of her and Zachary's marriage, and their marital status was terminated in March 2014. The dissolution judgment awarded Ashley sole legal and physical custody of the great-grandchildren and awarded Zachary reasonable visitation.

In March 2015, Ashley requested domestic violence restraining orders against Zachary in response to an incident where Zachary threatened her. Later that month, the court awarded Ashley a restraining order against Zachary including a child custody and visitation order granting Ashley legal and physical custody of the great-grandchildren and terminating Zachary's visitation. Ed and Yvonne's visits with the great-grandchildren ended about this time.

In December 2015, Ed and Yvonne filed a request for an order modifying visitation and a petition for independent great-grandparent visitation pursuant to sections 3100, 3102, 3103, and 3104. They asserted that despite numerous attempts to contact Ashley, she had ignored their calls and messages, and that as a consequence, they had not contacted their great-grandchildren since March 2015. Ed and Yvonne argued that because of their long-standing and substantial relationship with the great-grandchildren, visitation and continued family contact was in the great-grandchildren's best interest. Zachary consented to and joined in Ed and Yvonne's visitation petition. At the same time, Ed and Yvonne obtained an order shortening time to seek mandatory joinder as indispensable parties.

Ashley opposed the motion and the request for joinder. She argued her ongoing contact with Ed and Yvonne was hindered once Zachary moved into Ed and Yvonne's home because of the restraining order against Zachary. However, she asserted she had not deterred Ed and Yvonne from contacting the great-grandchildren, and except for one instance, they had not attempted to visit them since April 2015. She argued that an order joining Ed and Yvonne would be detrimental to the great-grandchildren's welfare because they associate Ed and Yvonne with Zachary, who terrifies them, and therefore visitation may cause the great-grandchildren fear and anxiety. She asserted that Ed and Yvonne minimized Zachary's drug and behavioral problems, and thus she could not trust them to protect the great-grandchildren from him. Ashley also asserted that Ed and Yvonne lacked standing to be joined because they were not grandparents, and the court had no subject matter jurisdiction to entertain their request.

In reply, Ed and Yvonne argued they had standing to seek visitation under California law providing for nonparent visitation. They additionally contended the court had discretion under section 3100 to grant visitation to nonparents who have an interest in the child's welfare; they had standing to seek visitation under California Rules of Court, rule 5.24(c)(1),(2) and (e)(1)(A),(B) given Zachary's consent to their visitation request; and they could seek visitation as de facto parents.

In March 2016, the court heard Ed and Yvonne's requests for joinder and visitation. During the hearing, the court observed that "[j]oinder is statutory" and while it had exhaustively reviewed case authority, it found no authority for joinder of great-grandparents. The court further noted that although there are grandparent, stepparent, and sibling joinders, "[t]here are not, by statute, great-grandparent joinders, and once an objection is lodged, the court cannot join because there is no statutory right to join." After hearing argument, the court denied Ed and Yvonne's joinder motion: "The court finds that this is a statutory scheme, and the great-grandparents do not have standing and will not be joined." Its written order provides: "The Court summarily denies the request of proposed Claimants, Ed and Yvonne [H.], to join as parties to this case for grandparent visitation based upon lack of subject matter jurisdiction because of lack of standing by the great-grandparents."

This appeal followed.

DISCUSSION

I. Standards of Review

We generally review custody and visitation orders for abuse of discretion. ( Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, 109 Cal.Rptr.2d 575, 27 P.3d 289 ; In re Marriage of Burgess (1996) 13 Cal.4th 25, 32, 51 Cal.Rptr.2d 444, 913 P.2d 473.) "Under this test, we must uphold the trial court ‘ruling if it is correct on any basis, regardless of whether such basis was actually invoked.’ " ( Diaz , at p. 255, 109 Cal.Rptr.2d 575, 27 P.3d 289.) Generally, reversal is only warranted "if there is no reasonable basis upon which the trial court could conclude that its decision advanced the best interests of the child." ( In re Marriage of Melville (2004) 122 Cal.App.4th 601, 610, 18 Cal.Rptr.3d 685 ; Burgess , at p. 32, 51 Cal.Rptr.2d 444, 913 P.2d 473.) " ‘ "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." ...’ " ' " ( Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182, 132 Cal.Rptr.3d 897.)

However, "[m]atters presenting pure questions of law, not involving resolution of disputed facts, are subject to the appellate court's independent review." ( Suarez v. City of Corona (2014) 229 Cal.App.4th 325, 332, 177 Cal.Rptr.3d 244.) Questions of statutory interpretation are also reviewed under an independent standard of review. ( In re Marriage of Huntley (2017) 10 Cal.App.5th 1053, 1058, 216 Cal.Rptr.3d 904.)

II. The Court Properly Ruled Ed and Yvonne Lack Standing to Seek Visitation

Ed and Yvonne contend the court erred when it summarily ruled they lacked standing to seek visitation. They argue the court did not analyze or consider the common meaning, origin, or legislative intent regarding the term "grandparent," which is undefined in the Family Code or other codes. According to Ed and Yvonne, common dictionary usage demonstrates that a great-grandparent is equivalent to a grandparent: the word "great" in "great-grandparent" is merely an adjective describing a type of grandparent, and thus great-grandparents encompass grandparents. As they see it, they are "are relationally considered ‘grandparents' " or are grandparents "for all practical matters." Ed and Yvonne contend that if the Legislature intended to take great-grandparents out of the visitation statutes it could have done so by language that eliminated great-grandparents, or it would have placed such a limitation somewhere in the Family Code. Finally, Ed and Yvonne argue the court should have given greater consideration to the fact that they are the only "grandparents" in the great-grandchildren's lives.

These arguments present a question of statutory interpretation, the primary task of which is to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." ( 926 North Ardmore Avenue, LLC v. County of Los Angeles (2017) 3 Cal.5th 319, 328, 219 Cal.Rptr.3d 695, 396 P.3d 1036 ; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1040, 130 Cal.Rptr.2d 672, 63 P.3d 228 ; Acqua Vista Homeowners Association v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1140, 213 Cal.Rptr.3d 323.) To determine Legislative intent, we look first to the language of the statute, adopting its usual and ordinary meaning. ( People v. Toney (2004) 32 Cal.4th 228, 232, 8 Cal.Rptr.3d 577, 82 P.3d 778 ; In re Lana S. (2012) 207 Cal.App.4th 94, 108, 142 Cal.Rptr.3d 792.) "If the plain, commonsense meaning of a statute's words is unambiguous, the plain meaning controls." ( Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818, 31 Cal.Rptr.3d 591, 115 P.3d 1233 ; Acqua Vista , at p. 1140, 213 Cal.Rptr.3d 323 [where statutory language is unambiguous, " ‘ "we presume the Legislature meant what it said, and the plain meaning ... governs" ’ "].) Thus, when a statute is clear and unambiguous, we may not "insert or delete words to accomplish a purpose that does not appear on its face or...