In re Guardianship of Ariana K.

• Decision Date: 13 July 2004
• Docket Number: No. B169792.,B169792.
• Citation: 15 Cal.Rptr.3d 817,120 Cal.App.4th 690
• Court: California Court of Appeals
• Parties: GUARDIANSHIP OF ARIANA K., a Minor. Mike K., Petitioner and Appellant, v. Barbara K. et al., Objectors and Respondents.

15 Cal.Rptr.3d 817

120 Cal.App.4th 690

GUARDIANSHIP OF ARIANA K., a Minor.

Mike K., Petitioner and Appellant, v.Barbara K. et al., Objectors and Respondents.

No. B169792.

Court of Appeal, Second District, Division 5.

July 13, 2004.

Certified for Partial Publication.^*

As Modified July 14, 2004.

Link K. Schwartz, Los Angeles, for Petitioner and Appellant.

Randy W. Medina for Objectors and Respondents.

TURNER, P.J.

I.INTRODUCTION

Mike K. appeals from an order appointing Kyriaki K. and Barbara K. as the guardians of Ariana K. Mike is Ariana's father.Kyriaki is Ariana's grandmother.Barbara is Ariana's maternal aunt.Ariana's mother, Despina K. is deceased.In the published portion of this opinion, we will address the issue of whether the trial court had subject matter jurisdiction to enter the challenged visitation and custody orders.As will be noted, we conclude the trial court had subject matter jurisdiction.More specifically, we hold that the Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980, T.I.A.S.No. 11670,¹ did not deprive the trial court of subject matter jurisdiction to adjudicate the guardianship dispute.In the unpublished portion of the opinion, we explain why the present appeal must be dismissed pursuant to the fugitive disentitlement doctrine.Finally, we will deny the monetary sanctions request of Barbara and Kyriaki.

II.BACKGROUND

A.The January 5, 1998, Guardianship Petitions

On January 5, 1998, Kyriaki and Barbara filed separate petitions for temporary guardianship and appointment of a guardian for Ariana.In support of the petitions, Kyriaki and Barbara filed declarations in which they presented the following evidence.Prior to December 1996, Despina and Mike lived together but were unmarried.Ariana was born in January 1996.At the time of Ariana's birth, Despina was diagnosed with ovarian cancer.In December 1996, Despina and Ariana moved into Barbara's home where Kyriaki also lived.Mike apparently was either unwilling or unable to care for Despina and Ariana who was an infant.During Despina's illness, she applied for and received public assistance.On December 17, 1997, after living with Kyriaki and Barbara for a year, Despina died.According to Kyriaki and Barbara, they were Ariana's primary caretakers.Ariana was bonded to Kyriaki and Barbara.Ariana had been residing with Kyriaki and Barbara for a year.Mike only had sporadic visits with Ariana prior to Despina's death.Mike, who had significant contacts in Greece, had threatened to "kidnap" Ariana.

On January 12, 1998, Mike and Kyriaki and Barbara entered into a "Conciliation Court Agreement and Stipulated ... Parenting Plan."The agreement provided in part that Mike was to have care and responsibility for Ariana except for those times when Kyriaki and Barbara would be caring for the child.A schedule was established for Kyriaki and Barbara which provided for visitation on alternate weekends.The January 12, 1998, agreement provides that Kyriaki and Barbara could have additional periods of visitation with Mike's consent.

On March 11, 1998, the parties filed a document entitled "Stipulation Modifying Conciliation Court Agreement."The stipulation provides that: Kyriaki and Barbara would withdraw their petition to be appointed Ariana's guardians; Mike was responsible for Ariana's care except during the times specified for visitation with Kyriaki and Barbara; and Kyriaki and Barbara had specified visitation rights with Ariana.

B.The 2002 Guardianship Petitions

On September 5, 2002, Barbara and Kyriaki filed an ex-parte application for temporary guardianship of Ariana and a request for issuance of an order to show cause re contempt.Barbara presented the following evidence in support of the temporary guardianship petition.Barbara and Kyriaki had attempted in 1998 to become Ariana's guardians.They did so in response to Mike's threat to take Ariana to Greece and leave her there.During the first two months of the stipulated visitation, Mike requested that Barbara and Kyriaki keep Ariana for longer periods of time than specified on the conciliation court agreement.(With Mike's consent, this was permissible under existing court orders.)Ariana would cry when he picked her up from these periods of visitation.Barbara declared, "It was always [Ariana's] fear that she would not be returned to us."At some point, Mike permitted Ariana to move into Barbara's home.Kyriaki, and Barbara's two children, lived there with Ariana.While living with Barbara and Kyriaki, Ariana attended Sierra Madre Community Nursery School from 1998 through June 2001.Barbara and Kyriaki paid for Ariana's tuition.Mike did not involve himself in any activities at Ariana's school.Barbara and Kyriaki provided for all of Ariana's daily needs and expenses.Barbara and Kyriaki: provided medical insurance for Ariana; took the youngster to the doctor and dentist; assisted the child with homework; attended Ariana's school activities; enrolled the child in extracurricular activities; and took charge of the youngster's religious education.Mike did not participate in any of these activities, nor did he provide any financial support for Ariana.

At the end of July 2002, Mike gave Barbara and Kyriaki 24 hours notice to pack Ariana's belongings for a trip to Greece.Ariana was chewing her fingernails and anxious.This was because Ariana feared she would not be returned to Barbara and Kyriaki.Ariana had to be forcefully taken onto the airplane by Mike.According to Barbara, Mike said that he would return with Ariana in 10 days.

On August 4, 2002, Barbara telephoned Greece to try to speak with Ariana.Mike was angry because Ariana continued to cry as he was taking her to Greece.Mike would not allow Barbara to speak with Ariana.When Mike came back to California on August 10, 2002, Ariana was not with him.Mike said that he had left Ariana in Greece.

Represented by counsel, Mike appeared at the hearing on the two applications.The court continued the temporary guardianship application and order to show request to October 17, 2002, for a hearing.On October 15, 2002, Mike filed a declaration in opposition to the two applications filed by Barbara and Kyriaki.Mike declared that he agreed to allow Barbara and Kyriaki to have visitation rights.Until 2002, he never tried to keep Ariana from seeing Barbara and Kyriaki.Mike denied that he had threatened to take Ariana to Greece after Despina died.Rather, according to Mike, Kyriaki and Barbara did not accept that he was Ariana's father.According to Mike, Ariana lived exclusively with him through June of 2002.Ariana only attended nursery school while visiting Kyriaki and Barbara.Ariana attended kindergarten from September 2001 through May 2002 as indicated by Barbara and Kyriaki.Mike said, though, that he involved himself in Ariana's activities.

Mike declared that he had always provided medical and dental insurance for Ariana until June 2002, when he changed employment.Barbara agreed to provide insurance coverage for Ariana at that time.Ariana was fully insured in Greece where she is residing with her paternal grandparents.Mike regularly took Ariana to a pediatrician in Culver City.Mike declared that when Ariana stayed regularly with Barbara and Kyriaki, they began to make excuses for not showing up at places such as a church where he would usually pick up his daughter.Mike denied forcibly taking Ariana onto the airplane to Greece.Mike admitted that she appeared to be afraid but said that Ariana told him that she was being kidnapped.Mike attributed Ariana's fears to statements made by Barbara and Kyriaki.

On October 17, 2002, Barbara and Kyriaki filed their second petition for permanent guardianship of Ariana.Hearing on the petitions was eventually continued until May 22, 2003.On May 22, 2003, Mike's continuance request was denied.The May 22, 2002, hearing began with a somewhat jumbled discussion concerning possible settlement and an order to Mike, which was later qualified by the trial court, to remain in the courtroom.Eventually, Barbara testified she was the "Director at the Bienvenitos [] Family Services in Los Angeles Child Welfare Agency" and had been "there" for 13 years.For the first year of her life, Ariana, lived with her parents.But then Despina became ill with cancer.Once Despina became ill, Barbara related the following: "Ariana came to live with us the first year of her life at the end of 1996 when [Despina] was still living.She called me and asked me to come and get the baby because she could not care for her because she was getting ill....[¶] So I took care of both [Despina] and Ariana for the year of 1997 until her passing of December 17[], 1997."Eventually, Mike, Barbara, and Kyriaki agreed as to Ariana's custody.Barbara testified: "[A]fter a few weeks we[met] with [Mike] ... and we made a plan on how we were going to raise this child together because of the passing of [Despina].And at that point we made a decision that we are going to have certain days with her and he was going to have certain days with her."At this point, Ariana was two years old.After Despina's death, the visitation plan broke down according to Barbara as follows: "[W]e were supposed to meet at the church to receive the child....[W]e were waiting for him to bring back the child, as we had agreed....[I]nstead, ... some guy ... drove up to me with a letter stating we were not going to see [Ariana] again."This then led to the temporary guardianship petition filed January 5, 1998, and the ensuing January 12, 1998, stipulated custody and parenting plan.

The January 12, 1998, order, which was judicially noticed at the May 22, 2003, hearing, states, "The child[] shall be in [Mike's] care during all time not designated below as Grandmother [and] AUNT[]'S time.[¶][] GRANDMOTHER [AND] AUNT SHALL HAVE THE CHILD IN HER CARE AS FOLLOWS: [¶][] Alternate weekends...