Guardianship of Diana B.
| Decision Date | 21 December 1994 |
| Docket Number | No. E013626,E013626 |
| Citation | 36 Cal.Rptr.2d 447,30 Cal.App.4th 1766 |
| Court | California Court of Appeals Court of Appeals |
| Parties | GUARDIANSHIP OF the Person of DIANA B., et al., JOSE R., et al., Petitioners and Respondents, v. GLORIA B., Objector and Appellant. |
Appellant Gloria B., mother of the minor children and objector in the court below, appeals from the trial court order granting the petition filed by petitioners Jose and Jennie R. (respondents herein) seeking to be appointed guardians of the minor children, Diana (also referred to in the record and in this opinion as Deana) and Brenda, born in 1980 and 1982, respectively. The sole issue on appeal is whether the trial court erred when it based the grant of the guardianship petition on findings supported by a preponderance of the evidence rather than by clear and convincing evidence. We find no error and we affirm.
The factual record in this appeal, including augmentation by both parties, consists primarily of the petition for temporary guardianship filed by the respondents in January 1992, with the attached 16-page declaration presenting the factual circumstances of the case from the respondents' point of view; and two documents identified as closing argument and points and authorities filed in April 1993 by appellant, following 10 days of court trial, which reviewed the position taken by appellant in opposition to the respondents' petition.
The facts, as alleged in the respondents' petition, were as follows: In November 1987 the respondents went with friends to visit an orphanage in Tijuana, Mexico, where they met the minors. At that time Diana was six years old and Brenda was five. The respondents were told by the nuns at the orphanage that the parents of the minors had been killed in a car accident.
The respondents began to visit the minors several times a week, and in December 1987 they attempted to set up a meeting with the uncle of the children to discuss adoption. Instead they were met by appellant who claimed to be the minors' mother. The respondents asked appellant whether they could adopt the children. Appellant told the respondents that they could take the children for a month or longer but that she would not agree to adoption. The respondents told appellant they were not interested in that kind of arrangement.
In May 1988 the respondents received a telephone call from one of the nuns at the orphanage who said that appellant was trying to reach them. They drove to Tijuana on May 8 to meet with appellant who told them that she wanted the respondents to take the children because she could not handle the responsibility and she could not give them the things that they needed. According to the respondents appellant insisted that the respondents take the children right then, and she told the children that they were going to live with the respondents forever. Appellant took the respondents to where she was living and gave them all the children's belongings, including birth certificates, vaccination records and records from the orphanage.
The respondents took the children home and took them for a medical checkup, enrolled them in school, bought furniture, toys and clothes for them, and taught them English. The respondents reported that the children adjusted well, but that they had nightmares about having seen appellant being beaten up by her brother. The children also told the respondents that appellant had put the children in a closet while she had sex with various men.
Appellant telephoned the respondents' house in July 1988 but the children were not home at the time and appellant did not call back. Appellant called in August 1988 asking to see the children, but when the respondents took the children to meet her she did not show up. In September 1988 appellant turned up at the respondents' home and told the respondents that she was angry that she had not been able to see the children, and she took the children with her. When the respondents contacted her the next day she told the respondents that she was taking the children to Guadalajara. In October 1988, after the respondents had located and visited the children several times in Tijuana, appellant allowed them to take the children for a week to celebrate Halloween.
During November the respondents continued to visit the children several times a week but ultimately decided that it would be easier on the children to let them go. After about five days the respondents received a call from the woman who was caring for the children in Tijuana saying that appellant had gone to the United States and had instructed the woman to contact the respondents to come and get the children. The woman told the respondents that the children would sit outside by the gate and wait for the respondents to come pick them up, and that the children told her that they could always count on the respondents. The respondents eventually did collect the children.
After about two weeks appellant contacted the respondents; the respondents told appellant they could no longer be involved in this situation and they took the children and their belongings to appellant. Near the end of January 1989 the respondents received a telephone call from Brenda, who had just turned seven. Appellant agreed to let the respondents see the girls, and then agreed to let the respondents keep the girls for the rest of the school year. Attached to the respondents' declaration was a letter dated January 7, 1992, from an elementary school principal in Cathedral City stating that both girls had been enrolled in the school continuously from February 8, 1989. Respondent Jose R. took the children every weekend to see appellant who was then living in Pomona.
In May 1989 the respondents told appellant that they did not want to be babysitters for the children any more and that they would like to adopt them. Appellant was afraid that if the respondents adopted the girls they would not let her see them any more. The respondents assured her that they would put it in writing that she could visit the girls.
The minors lived with the respondents, with periodic visits to appellant, until December 25, 1991, at which time appellant took the children for what was supposed to be several days. On December 28, 1991, appellant refused to let the respondents see the children and told the respondents she would never let them see the children again. On January 22, 1992, not having seen the children since December 25, the respondents filed their petitions for temporary and permanent guardianship of the children.
In her closing argument and points and authorities filed with the court April 1, 1993, appellant challenged the allegations of the petition and contended instead that the children had originally been abducted by the respondents and brought to the United States and kept from appellant in spite of her objections. Appellant challenged the respondents' claim of how they obtained the children's birth certificates and health and other documents, stating that they got them from the orphanage rather than from appellant. In support of her position appellant cited conflicting testimony which had been presented at trial by the nun from the orphanage as well as from the parties.
Appellant claimed that, in May of 1988, after having convinced her that the children were to stay for only a short weekend visit, the respondents had taken the children illegally across the international border and had kept them in California for over three months. When the respondents refused to return the children to her she was forced to come to the United States illegally to recover the children from the respondents. Appellant noted that the respondents admitted that appellant had told them that she did not want to give up her children and that she wanted to keep the children with her.
Appellant challenged the respondents' statements that in December 1988 they had been contacted by the babysitter of the children to come pick up the children and take them to the United States where appellant had already gone. Appellant claimed instead that she had gone to pick up the children after work and discovered that they had been taken by the respondents without her permission. Appellant again cited the contradictory testimony from the babysitter and the respondents as undermining the credibility of the respondents on this issue.
Appellant disputed the explanation given by the respondents for her decision to leave the children with the respondents in early 1989. She contended that the respondents had subjected her to threats that if she did not cooperate she would never get to see the children. The respondents testified that appellant had agreed to let them care for the children and that she would have visitation with them. Appellant apparently testified that she was intimidated and threatened by the respondents with the police and immigration authorities until she allowed the children to go with the respondents.
Appellant apparently also introduced testimony by children other than Diana and Brenda who supported appellant's claims that she had an affectionate relationship with her children and also supported appellant's version of how the children were taken from her. Appellant's argument also referred to a search of her room allegedly made by the respondents in an attempt to find drugs or other items which would reflect badly on appellant, but no such allegations were made in the petition or found by the trial court in the ruling now before us in this appeal.
Finally, appellant alleged a subtle "brainwashing" by the respondents which has alienated the children from her.
At the end of the hearing the trial court granted the respondents' petition for appointment as guardians. In...
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...over a parent's objections. In doing so we decline to follow the Fourth District's decision in Guardianship of Diana B. (1994) 30 Cal.App.4th 1766, 36 Cal.Rptr.2d 447 (hereafter Diana B.). II. FACTUAL AND PROCEDURAL Julie B. is the natural mother of Stephen, who was born on February 24, 198......
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... ... ADOPTION OF DANIELE G, a Minor ... Robert D. et al. Plaintiffs and Appellants, ... Jaime T, Defendant and Respondent ... Guardianship of Daniele G, a Minor ... Robert D. et al. Petitioners and Appellants, ... Jaime T., Objector and Respondent ... No. E026362 ... No ... 5. Guardianship of Zachary H. (1999) 73 Cal. App.4th 51, 86 Cal.Rptr.2d 7 ... 6. In Guardianship of Diana B. (1994) 30 Cal. App.4th 1766, 36 Cal.Rptr.2d 447 [Fourth Dist., Div. Two], this court held that the necessary findings may be made based on the ... ...
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In re Guardianship for THM, 21635.
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