Guardianship of Stephen G., A068597

• Decision Date: 11 December 1995
• Docket Number: No. A068597,A068597
• Citation: 47 Cal.Rptr.2d 409,40 Cal.App.4th 1418
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9492, 95 Daily Journal D.A.R. 16,401 GUARDIANSHIP OF STEPHEN G., a Minor. GAYLE K. and Sandra K., Petitioners and Appellants, v. JULIE B., Objector and Respondent.

Page 409

47 Cal.Rptr.2d 409

40 Cal.App.4th 1418, 95 Cal. Daily Op. Serv. 9492,

95 Daily Journal D.A.R. 16,401

GUARDIANSHIP OF STEPHEN G., a Minor.

GAYLE K. and Sandra K., Petitioners and Appellants, v. JULIE B., Objector and Respondent.

No. A068597.

Court of Appeal, First District, Division 2, California.

Dec. 11, 1995.

Linda M. Gonsalves, Sheri Passer Dietrich, Gonsalves & Kozachenko, Fremont, for Appellants.

Lynda F. Levine, Oakland, for Respondent.

HAERLE, Associate Justice.

I. INTRODUCTION

Gayle K. and Sandra K. appeal from an order denying their petition to be appointed as guardians of Stephen G., a minor. They contend that the trial court applied an erroneous standard of proof when it required them to show by clear and convincing evidence that Stephen would suffer detriment if returned to his mother, objector Julie B., and that an award of custody to appellants was in Stephen's best interests. We adhere to the great weight of authority and hold that clear and convincing evidence is the proper standard by which to test a non-parent's attempt to gain custody of a child 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 BACKGROUND

Julie B. is the natural mother of Stephen, who was born on February 24, 1986, in Santa Barbara. Gayle K. is Julie's mother and Stephen's grandmother. Sandra K. is Gayle's domestic partner.

It is undisputed that, when Stephen was six months old, Julie turned him over to Gayle and Sandra for caretaking. He thereafter lived in their Union City home from August 1986 until at least 1993, during which period they were his primary caregivers. In September 1993 Julie removed Stephen from his school and took him to the Santa Barbara home she shared with her husband Richard B. and their three sons. Five days later, appellants filed a petition for guardianship and temporary guardianship. The court appointed them temporary guardians and authorized them to return Stephen to their residence in Union City. In February 1994, the parties stipulated to extend the temporary guardianship until the petition for guardianship was heard, and to participate in an evaluation by the "Child Custody Training Project."

At the hearing on the guardianship petition appellants called psychologist Michael Jones, who testified that Stephen had developed a "psychological parent-child bond" with Sandra K., and that it would be detrimental to remove him from her. He testified that, if Stephen were placed with his mother and her husband and sons, there was a substantial risk that Stephen would never form a primary bond with her; that he would not identify with the family's values, prohibitions, and ideals; that he would feel resentment towards them; and that he would continue a family pattern by having difficulty with parent-child relationships in his own future life. However, psychologist Heather Levy, a trainee with the Child Custody Training Project, testified that she believed the relationship between Stephen and Sandra was organized around Sandra's emotional needs rather than Stephen's; that Sandra had difficulty letting Stephen out of her sight; that he was suffering developmentally because he was not allowed to be more independent; that his three half-brothers wanted Stephen to come and live with them; that Stephen's relationship with Richard B. was beneficial for Stephen; and that she expected Julie and Richard to be supportive of frequent and continuing contact between Stephen and appellants. She concluded that it would not be detrimental for Stephen to be returned to Julie; that it would not be in his best interest to remain in Sandra and Gayle's home; that it would be damaging for Stephen to continue to believe that his mother had no interest in him; that respondent's home offered a more well-rounded environment for a child; and that Stephen could, in that environment, become a more confident and independent child.

In the course of the hearing on the petition the court stated that the central factor in the case was the presumption in favor of granting custody to Julie as Stephen's natural mother. Under this rule, the court said, "there has to be shown by clear and convincing evidence that somebody other than the natural mother should be entitled to be the guardian of the child." After the parties rested the court invited them to supply authority concerning the "degree or level of detriment" necessary to warrant an award of custody to a nonparent. Counsel for respondent cited Nancy S. v. Michele G. (1991) 228 Cal.App.3d 831, 279 Cal.Rptr. 212 for the proposition that "custody can be awarded to a de facto parent only if it is established by clear and convincing evidence that parental custody is detrimental." Ultimately the court issued a written opinion stating in part, "[B]efore this Court may grant custody to the K[']s, the Court must find by clear and convincing evidence that such grant of custody is required to serve the best interest of Stephen and that to grant custody to Julie B[.] would be detrimental to Stephen." The court found that neither detriment nor best interest was established by clear and convincing evidence. Accordingly, the court denied the petition for guardianship.

Appellants filed this timely appeal. ¹

III. DISCUSSION

A. Failure to Raise Point Below

Appellants' sole contention on appeal is that the trial court applied an unduly rigorous standard of proof when it required "clear and convincing evidence" that Stephen would suffer detriment if placed in Julie B.'s custody and that an award of custody to appellants would be in Stephen's best interest. As indicated above, the court and counsel for respondent stated on more than one occasion that the governing standard of proof was "clear and convincing evidence." Appellants never objected to these statements or urged the court to apply a different standard.

"An appellate court will ordinarily not consider procedural defects or erroneous rulings ... where an objection could have been, but was not, presented to the lower court by some appropriate method. [Citations.]" (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 311, p. 321.) In apparent recognition of this obstacle, appellants note that their argument on appeal rests on Diana B., supra, 30 Cal.App.4th 1766, 36 Cal.Rptr.2d 447, which was decided after the court below issued its order denying the guardianship petition. Appellants contend that since they did not have an opportunity to cite that case to the trial court, they should be permitted to raise the point for the first time on appeal.

Courts have often entertained new arguments on appeal when they rest on new authority that the appellant could not fairly be expected to anticipate. (See, e.g., People v. Turner (1990) 50 Cal.3d 668, 703, 268 Cal.Rptr. 706, 789 P.2d 887 [point not waived "when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change"]; Clemens v. Regents of University of California (1970) 8 Cal.App.3d 1, 20, 87 Cal.Rptr. 108 [barring point on appeal would have "unfairly penalize[d]" appellant for a "lack of extrasensory perception"]; In re Gladys R. (1970) 1 Cal.3d 855, 861, 83 Cal.Rptr. 671, 464 P.2d 127; compare In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344-1345, 13 Cal.Rptr.2d 215, review den. [Gladys R. depended on unfairness of requiring objection contrary to prevailing law]; In re James D. (1981) 116 Cal.App.3d 810, 816, 172 Cal.Rptr. 321, hearing den. [same].)

We conclude that the point here was not waived because, as appears in the following analysis, Diana B.'s approval of a preponderance-of-evidence standard for an award of custody to a nonparent marks an unforeseeable departure from prior law. Therefore, counsel could not be expected to object to the trial court's use of a higher standard of proof in compliance with prevailing authority. However, we are ultimately compelled to conclude that appellants' contention, while not waived, is unsound; that Diana B.'s departure from prevailing law was not only unheralded but unwarranted; and that the court below correctly required proof by clear and convincing evidence.

B. Standard of Proof

Family Code section 3041 provides that, before a court may award custody of a child to a person other than a parent, "the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child."

The statute is silent with respect to the governing standard of proof. Evidence Code section 115 provides in part, "Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." As used in this statute, however, "law" includes decisional law. (Evid.Code, § 160; People v. Burnick (1975) 14 Cal.3d 306, 313-314, 121 Cal.Rptr. 488, 535 P.2d 352.) "[T]he choice of standard of proof 'is the kind of question which has traditionally been left to the judiciary to resolve.' " (Woodby v. Immigration Service (1966) 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362, quoted in People v. Burnick, supra, 14 Cal.3d at p. 314, 121 Cal.Rptr. 488, 535 P.2d 352.)

Family Code section 3041 is a recodification "without substantive change" of former Civil Code section 4600, subd. (c) (hereafter section 4600(c)). (Cal.Law Revision Com. Rep., 29D West's Ann.Fam.Code (1994 ed.) § 3041, p. 236; 23 Cal.Law Revision Com.Rep. (1993) 1.) Section 4600(c) was consistently interpreted to require proof by clear and convincing evidence. In In re B.G. (1974) 11 Cal.3d 679, 695, 698-699, 114 Cal.Rptr. 444, 523 P.2d 244 (hereafter B.G.), the Supreme Court reviewed the legislative history of section 4600(c) and concluded that it "permit[ted] the juvenile court to award custody to a nonparent against...