Lopez v. Martinez

• Decision Date: 06 December 2000
• Citation: 102 Cal.Rptr.2d 71,85 Cal.App. 4th 279
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2000) RACHEL LOPEZ et al.,Petitioners and Respondents, v. ELIZABETH MARTINEZ,Respondent and Appellant. B138758 Filed

102 Cal.Rptr.2d 71 (Cal.App. 2 Dist. 2000)

RACHEL LOPEZ et al.,Petitioners and Respondents, v. ELIZABETH MARTINEZ,Respondent and Appellant.

B138758

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

Filed 12/6/00

APPEAL from the denial of a motion to terminate grandparent visitation. Superior Court for the County of Los Angeles, Richard A. Curtis, Commissioner. Reversed.

(Super. Ct. No. ED 021945)

William J. Cleary, Jr. and Walter M. Kaye for Respondent and Appellant.

Link K. Schwartz for Petitioners and Respondents.

CERTIFIED FOR PUBLICATION

JOHNSON, J.

Appellant Elizabeth Martinez has refused to allow respondents, Rachel and Ruben Lopez, to visit her son, Daniel Martinez. Daniel is respondents' grandson and the biological son of appellant and Carl Blair. Respondents petitioned for visitation rights pursuant to Family Code section 3104 which gives grandparents standing to petition for visitation when a minor's parents are living separately or one parent has been absent for over a month. Because Carl Blair had been absent since Daniel's birth, respondents had standing. After respondents' visitation petition was initiated, Elizabeth's husband, Hector Martinez, adopted Daniel. Under Family Code section 3104, a court must terminate grandparental visitation should circumstances change so the statutorily defined requirements for standing are no longer met. Although Hector became Daniel's legal father, the trial court found the adoption was not a "change of circumstances" as intended by the Legislature to mandate automatic termination of visitation upon parental request. We find the trial court's interpretation of the statute was erroneous and therefore we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In 1990, appellant Elizabeth Martinez conceived a child with her live-in boyfriend, Carl Blair. After Carl learned of Elizabeth's pregnancy, the two ended their relationship and Elizabeth moved into the home of her parents, respondents Rachel and Ruben Lopez. Elizabeth lived in her parents' home throughout her pregnancy and gave birth to her son, Daniel Martinez, on January 22, 1991. Following Daniel's birth, Carl neither contacted Elizabeth and Daniel, nor provided any support. Elizabeth and Daniel lived with the Lopezes until Daniel was four and one-half years old. During those years, Elizabeth worked and attended school while the Lopezes provided abundant assistance in rearing her son. More than mere babysitters and even more than many grandparents, the Lopezes deeply loved and doted on Daniel, bringing him to church with them, arranging for lavish festivities on his birthdays, and celebrating holidays together. Unfortunately Daniel's birth, although a blessing for both mother and grandparents, was not enough to calm the historically stormy relationship between Elizabeth and her mother, Rachel. Elizabeth was especially perturbed when Rachel disregarded Elizabeth's parenting philosophies and refused to respect rules Elizabeth had established for Daniel.

In 1995, Elizabeth met Hector Martinez. The two were married, and Elizabeth moved out of her parents' home and formed a nuclear family unit with Daniel and Hector. The tension already present between the Lopez and Martinez households increased until Elizabeth refused to allow her parents to see their grandchild.

In August 1998, the Lopezes initiated an Order to Show Cause Petition pursuant to Family Code section 3104, seeking to gain visitation with Daniel. Because Daniel's biological father was absent and had not made his whereabouts known to Elizabeth or Daniel, the trial court found Elizabeth's parents had standing to file the petition under Family Code section 3104.¹ Although Hector and Elizabeth had been living together with Daniel as a family unit since their marriage, Hector had not yet adopted Daniel and so could not be considered Daniel's parent for purposes of the statute. The court ordered the Lopezes and Martinezes to attend mediation and family counseling with a therapist in hopes the families could work out their differences outside of court.

The attempts at out-of-court reconciliation failed miserably. Meanwhile, unbeknownst to the Lopezes, the Martinezes had initiated proceedings for Hector to adopt Daniel, and the petition for adoption was granted on August 30, 1999. In November 1999, after the failed effort at mediation, the Lopezes (who were then unaware of the adoption) filed an application for an Order to Show Cause to establish visitation.

A hearing was conducted on December 13, 1999, to determine whether visitation with his grandparents was in Daniel's best interest. The clinical psychologist who had conducted the therapy sessions with the two families testified the Martinezes would not make themselves available for counseling, and had cancelled scheduled appointments. (In fact, Elizabeth and her attorney failed to appear at the visitation hearing.) The psychologist also verified the Martinezes had never accused the Lopezes of child abuse, endangerment, or neglect. Rather, she said, it seemed the Martinezes' decision to refuse grandparental visitation was due to "the clash of philosophies across generations." Based on her research and experience, she opined the denial of grandparental visitation would have negative repercussions on Daniel's emotional welfare; since his grandparents had been "his primary caretakers for so long," Daniel would probably have "feelings of abandonment," "develop insecurities," and have "difficulty reaching out to others."

Based on this expert testimony, the court found the requirements of subsections (a)(1) and (a)(2) of section 3104 were satisfied: (1) visitation was in Daniel's best interest due to the "primary attachment bond" between Daniel and the Lopezes, and (2) this interest was important enough to outweigh Elizabeth's right to exercise her parental authority because denial of visitation would likely be a "severe detriment" to Daniel. Thus, the court granted the Lopezes' petition for visitation with their grandson.

In December 1999, Elizabeth notified the court Hector had formally adopted Daniel and moved ex parte to stay the visitation order. The request for stay was granted and a hearing was held on December 29, 1999, to determine whether the adoption qualified as a "change of circumstances" requiring termination of visitation under Family

Code section 3104. The trial court found the adoption was not a "change of circumstances" for purposes of the statute and denied Elizabeth's motion to terminate the Lopezes' visitation rights, but stayed its visitation order pending appeal.

DISCUSSION

Determining the interpretation of a statute and its applicability to a given situation is a question of law. Thus, we review such an issue independently and are not bound by the trial court's conclusions. (Southern California Edison Co. v. State Board of Education (1972) 7 Cal.3d 652, 659, fn. 8.) In construing a statute, we must identify the Legislature's intent in order to carry out the purpose of the law. (People v. Coronado (1995) 12 Cal.4th 145, 151.) We determine the legislative intent by first examining every word of the statute "according to the usual, ordinary import of the language employed in framing [it]." (In re Alpine (1928) 203 Cal. 731, 737.) The words in the statute "must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear." (Johnstone v. Richardson (1951) 103 Cal.App.2d 41, 46.)

I.GIVING EFFECT TO THE LEGISLATIVE INTENT BEHIND THE STATUTE REQUIRES TERMINATION OF RESPONDENTS' VISITATION RIGHTS.

The Family Code does not confer standing upon grandparents to file a petition for visitation while a minor child's natural or adoptive parents are married, unless certain circumstances exist. Pertinent to this case, grandparents have standing when the parents are married but "currently living separately and apart on a permanent or indefinite basis" or "[o]ne of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse." (Fam. Code, 3104, subds.

(b)(1), (2).) If a court grants grandparental visitation pursuant to one of these circumstances and "a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination." (Id. at subd. (b) [emphasis added].)

Appellant does not dispute the Lopezes had standing under the statute to file their initial visitation petition. However, she argues Hector's adoption of Daniel constituted a change of circumstances because Hector became Daniel's legal father, and because Daniel was living together as a family unit with his married parents, the statutory prerequisite for court-ordered visitation was no longer satisfied.

Respondents insist the Legislature did not intend this sort of adoption to be a change of circumstances requiring a court to terminate visitation upon a parent's request. The trial court agreed and held the Legislature, "in enacting the jumble of changed circumstances that would affect an Order under 3104," did not contemplate the situation of "a stepparent with whom a child has been living in an intact relationship, that adopting the child, and having that be a change of circumstances, would automatically change anything." We hold the trial court's construction of the statute is erroneous.

A. The Plain Meaning of the Words in the Statute Requires Us to Treat Stepparent Adoption as a Change of Circumstances.

Section 8616 of the Family Code explains the adoptive parent-child relationship: "After adoption, the adopted child and the adoptive parents shall sustain towards each other the legal relationship of parent and child and have all the rights and are subject to all the duties of that relationship." Once Hector's petition for adoption of Daniel was granted, Hector...