Guardianship C.E. v. M.M.
| Decision Date | 31 January 2019 |
| Docket Number | H045427 |
| Citation | 31 Cal.App.5th 1038,243 Cal.Rptr.3d 428 |
| Parties | GUARDIANSHIP OF C.E., a Minor. S.H., Petitioner and Appellant, v. M.M. et al., Objectors and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Attorneys for Minor, C.E.: Julie E. Braden, under appointment by the Court of Appeal for Minor
Attorneys for Petitioner and Appellant, S.H.: O'Reilly Law Office, Kathleen O'Reilly
Attorneys for Objectors and Respondents, M.M. et al.: Carter Law Firm, Gregory Wade Carter
Appellant S.H. (Appellant)1 appeals the trial court's order denying her petition to remove respondents B.M. and M.M.2 as guardians of her nephew, C.E., and to name her as C.E.’s guardian. Appellant raises five challenges to the order on appeal: The trial court erred when it failed to consolidate the guardianship action with the adoption proceeding; the judge assigned to the guardianship proceedings "sabotage[d]" her adoption petition and prejudged the petition for removal of the guardians; the assigned judge should have disqualified himself under Code of Civil Procedure section 170.1 ; the trial court misinterpreted Probate Code section 2650 ; and the trial court abused its discretion by denying the petition to remove Respondents as guardians. We agree the court erred in failing to consolidate the guardianship into the adoption proceeding, resulting in prejudice to Appellant. We reverse the order accordingly.
C.E., age three at the time of the relevant hearing, is the biological child of D.W. (Mother) and J.E. (Father). While Mother was alive, her family and friends were actively involved in C.E.’s life. Appellant is Mother's sister. Appellant cared for C.E. on Mondays and every other weekend. C.E. also spent significant time with Mother's mother, L.F. (Grandmother), and Mother's sister, T.W. Respondent B. was Mother's close friend, and was considered by Mother's family to be like a sister to Mother although they were not biologically related. Respondent B. spent a great deal of time with C.E. before Mother's death. The family was also close with C.E.’s half-brother, Mother's older son from a prior relationship.
Mother passed away as a result of a drowning accident in August 2015 that was witnessed by Appellant and other family members. After Mother's death, C.E. initially lived with Father; he also spent time with Respondents. Appellant, Respondent B., and the rest of Mother's family continued to be involved in C.E.’s life on a day-to-day basis.
Over time, Appellant, Respondent B., and the family became concerned about Father's ability to parent C.E. Father was the subject of a domestic violence restraining order involving his children from a prior relationship. The parties, with the support of the rest of Mother's family and other close friends, determined Respondents should petition to be C.E.’s guardians, thus removing him from Father's care. Respondents filed their guardianship petition in April 2016. Appellant, T.W., Grandmother, and a family friend submitted statements to the court in support of Respondents’ petition. Father opposed the petition.
In May 2016, the trial court granted temporary guardianship of C.E. to Respondents and subsequently conducted a hearing on Respondents’ petition. Although Father initially appeared to challenge the petition, he left the courthouse after the court denied his request for a continuance. The court granted Respondents’ petition and appointed them guardians of C.E.’s person and estate on June 17, 2016.
Not long after they were appointed C.E.’s guardians, Respondents’ relationship with Appellant and the rest of Mother's family deteriorated. Although the court's orders indicated Respondents had legal and physical custody of C.E., Appellant and her family believed they had an informal agreement with Respondents that would allow them to jointly parent C.E., share in decisionmaking, and visit him regularly. Respondents limited C.E.’s visitation with Appellant and the family, and restricted the family's involvement in decisions regarding C.E.
In December 2016, six months after the court granted the guardianship petition, Appellant filed a petition to remove Respondents as C.E.’s guardians and contemporaneously filed a petition to be appointed as C.E.’s replacement guardian. In her petitions, Appellant alleged there had been a change in circumstances that warranted changing guardianship in C.E.’s best interests. Appellant claimed Respondents restricted the family's visits with C.E. and threatened to move out of state with him, thus preventing him from bonding with the family, despite the agreements they made when the family supported Respondents’ petition. Father supported Appellant's petition to replace Respondents as C.E.’s guardians, as did Appellant's other family members. Respondents opposed Appellant's petitions. They argued it was not in C.E.’s best interests to change guardianship to Appellant. They asserted that while they initially tried to balance the family's demands with C.E.’s needs, they found C.E. evidenced negative physical and emotional effects from the visitation schedule and other family demands. Respondents felt they needed to set boundaries with the family, which made the family angry.
The trial court assigned Appellant's petitions to the judicial officer who had heard Respondents’ guardianship petition. The court's probate investigator provided a report to the court on January 28, 2017, after visiting Respondents and C.E. in their home. She also visited Appellant, but did not observe Appellant with C.E.; given that Appellant sought to remove Respondents as C.E.’s guardians, the investigation's focus was on C.E.’s well-being at Respondents’ house. The investigator recommended that the court appoint minor's counsel for C.E.; she did not recommend removing Respondents as C.E.’s guardian at that time. She could not say it was in C.E.’s best interests to remove him from Respondents, despite believing the family made "salient points," and recognizing the family might have made a different decision about who should be C.E.’s guardian had they not been suffering "grief and fear after the death of [C.E.]’s mother." The investigator recommended "the assessment and opinion of a child custody expert (child psychologist), and a conclusive bonding study, to determine the level of detriment (or not) that might be caused for [C.E.] if he were to be removed from the current guardians."
The trial court appointed counsel for C.E. The parties, including minor's counsel, all agreed to the appointment of an expert to undertake a bonding assessment; they stipulated to the appointment on the record at a hearing in March 2017. The court declined to appoint the expert despite the stipulation. In doing so, the trial court stated,
Respondents filed a motion for judgment on the pleadings in April 2017, alleging Appellant's petitions to remove them as C.E.’s guardians and have herself appointed in their place did not state sufficient facts to constitute a cause of action to dismiss and/or replace Respondents. After briefing and argument, the court granted the motion as to each of Appellant's petitions with leave to amend. In July 2017, Appellant filed a first amended petition to remove Respondents as guardians. Consistent with Probate Code section 2650, she alleged Respondents were not able to perform the fundamental responsibilities of guardians and should be removed in C.E.’s best interests for the following reasons: They failed to provide medical and dental care or a "safe environment for physical and emotional growth"; Respondent B. suffered from a medical condition that clouded her judgment and damaged C.E.’s "emotional and psychological life"; Respondents restricted C.E.’s bond with Mother's family; Respondents stated an intent to move away from that family; and, Appellant had petitioned to adopt C.E., such that the guardianship should be consolidated into the adoption proceeding. Respondents immediately objected to Appellant's amended petition.
In April 2017, before Respondents filed the motion for judgment on the pleadings, and before Appellant filed her first amended petition to remove Respondents as guardians, Appellant filed a separate petition to adopt C.E. She subsequently sought to consolidate the guardianship and adoption cases through motions filed in each case, as described below.
The trial court assigned the adoption case to the same judge who was to hear the guardianship case. In May 2017, after filing the adoption petition, Appellant filed an ex parte request in the adoption case asking the court to consolidate the guardianship case into the adoption case. In an order filed May 15, 2017, the court denied the request, stating the issue was moot because the adoption and guardianship matters were assigned to the same judicial officer for hearing. The order also indicated the adoption matter would trail the guardianship proceeding.
Within a week of the adoption case being assigned to the judge hearing the guardianship matter, Appellant submitted a timely peremptory challenge under Code of Civil Procedure section 170.6 to the guardianship judge hearing the adoption case. At a hearing in June 2017, the court confirmed that the judge hearing the guardianship matter was disqualified in...
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