Alma A. v. Katrina A.

 

 

 

 

 

 

 

 

 

 

Filed 8/6/13  Alma A. v. Katrina A. CA4/3

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

ALMA M.,         Plaintiff and Respondent,               v.   KATRINA T.,         Defendant and Appellant.

G047558            (Super. Ct. No. 12FL000227)            O P I N I O N

 

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, James L. Waltz, Judge. 
Affirmed.

                        Law Offices of Jeffrey
W. Doeringer and Jeffrey W. Doeringer for Defendant and Appellant.

                        Law Offices of Milo
F. DeArmey and Milo F. DeArmey for Plaintiff and
Respondent.

 

*                      *                      *

                        The trial court granted
the petition of plaintiff and respondent Alma M. (grandmother) for href="http://www.mcmillanlaw.com/">grandparent visitation of now
nine-year-old David A. (child) under Family Code section 3102.href="#_ftn1" name="_ftnref1" title="">[1]  Defendant and appellant Katrina T., child’s
mother (mother), appeals, claiming section 3102 is unconstitutional both
facially and as applied, the court erred in failing to apply the presumption of
parental fitness to decide the best interest of her child, and grandmother did
not show by clear and convincing evidence denial of visitation would be
detrimental to the child.  Finding no
error, we affirm.

 

FACTS AND PROCEDURAL HISTORY

 

                        Mother was married to
grandmother’s son (father) before he died in 2010.  Mother and father had two children, the child
and his younger sister, who was born approximately a year and a half before
father’s death.href="#_ftn2" name="_ftnref2"
title="">[2]  Grandmother is married to David, the child’s
stepgrandfather (grandfather; collectively grandparents); they had been married
31 years at the time of the hearing.

                        Father had five children
from a previous marriage and, according to grandmother’s declaration,
grandparents were “very instrumental in supporting [father] throughout his life
and through his raising of” all his children. 
The entire family, including mother, father, and the child, had “a very
close family relationship.”

                        During father’s life, he
and mother, along with the child, regularly visited with grandparents, at least
once a week and often more times.  Mother,
father, and the child each had a bedroom in grandparents’ home.  Often the child would stay with
grandparents.  Since father’s death,
although she told them they would be able to visit with the child, mother “cut
off” grandparents’ visitation with him. 
The parties agreed that except for some contact at Christmas there had
been no visitation from 2010 until the date of the hearing.

                        Grandfather testified he
was very close to father and had “an ongoing relationship” with the child; he
was probably closer to the child than anyone except his parents.  The child is named for him.  For the past few years before father’s death
grandfather saw the child as many as four times a week.  When the grandparents lived in Nevada,
a few times the child would visit for a couple of weeks.

                        When they were together
grandfather and the child went on outings to bookstores, because the child
loved to read, movies, and swimming; they also played ball, and attended family
gatherings.  The child would wait for him
at the door when grandfather was returning home from work, asking grandmother
when he was going to be home.

                        One of father’s adult
daughters testified to grandfather’s good relationship with the child and their
frequent visits.  An adult son testified
he had lived with father and mother and helped care for the child.  The child’s interaction with the grandparents
was “amazing.”  Another adult son
testified the child had asked about grandparents three to five times within the
past year, he had observed the child’s interaction with grandparents and it was
“pure delight”; he was “ecstatic” to be with them.

                        The child’s former nanny
of five years also testified to the good relationship between the child and the
grandparents.  He stated the child had
looked forward to the visits with grandparents in Nevada.  He never heard mother state any opposition to
visits with the grandparents. 

                        Grandmother testified to
her close relationship with the child; she wanted to see him “more than
anything.”  He looked forward to seeing
her.  She was present in the delivery
room when the child was born.  She saw
the child every week when she took him to swimming lessons she paid for.  She does not have any problems with
mother.  At some point after father’s
death mother moved and grandmother could not find her.  Grandmother called perhaps 10 times trying to
locate mother and finally found her.

                        Mother’s fiancée
testified he never heard the child talk about or ask to see grandparents and
they never sent cards or gifts.  The
child sails every day and also surfs.  He
gets good grades.

                        Sylvia is the mother of
mother’s fiancée and grandmother’s cousin. 
She testified grandmother gave her the finger when they were at court on
the date of the hearing.

                        Mother testified she had
never denied visitation, claiming grandparents had not requested it.  She stated grandmother stopped speaking to
her and believed it was because mother was friendly with Sylvia.  In addition, grandmother had told the child
someone in mother’s family could not love him the way grandmother could and
that had caused the child to wet the bed. 
She also testified father’s brother had a criminal record and
unspecified sexual allegations, and her request to grandmother not to let the
children have contact with him was disregarded. 
She further mentioned grandfather’s hostility toward her because she had
not repaid money she and father had borrowed from him.

                        Yet she testified she
did not oppose visitation under her supervision, only if it was court ordered,
because of the family’s activities.  And
she stated she was concerned grandparents would say something negative about
her and her family.  It would be “ideal”
if the court ordered grandparents not to make negative comments. 

                        Mother argued she did
not “want to be obligated to have to show up to a
visitation. . . .  [S]he just wants to raise her
children as she sees fit and have them associate with who she thinks is best
for her children.”  She did not want to
“put her life on hold” because of a court order.  The court expressed its sympathy for the fact
mother did not want “highly-scheduled contact” but found if the decision was
left to her there would be no visits.

                        Mother also wanted to be
present during the visits.  The court
refused, noting she and grandmother did not like each other.  The court acknowledged mother’s concern with
having monitored visitation.

                        In ruling in favor of
grandmother, the court first recognized the presumption “a fit parent will act
in the best interest of [his or her] child . . . .”  It found grandmother had rebutted that
presumption with clear and convincing evidence. 
It also found that as to the best interests of the child as far as
visitation with grandmother, mother was unfit. 
She had “a blind spot for the best interest of the child” and “ha[d] not
been focused” on the child’s best interest. 
She harbors animosity toward grandmother and has improperly allowed this
to influence her actions. 

                        The child has a “deep
and close relationship” with grandparents that has existed for many years, and
it is in the child’s best interest to foster the bond with them.  It noted the child was named for
grandfather.  There is “no evidence” a
relationship with grandparents will harm the child, but mother’s conduct that
“impeded[ed] the child’s contact, love and affection of his grandparents is
detrimental and harmful.”  Mother’s
refusal to allow visitation cut the child off from the “care, comfort and
society from his grandparents” and that is or will be harmful to him.  In doing so she also

“single[-]handedly
cut off [the child’s] relationship with his half brothers and sisters.”  In evaluating the evidence, the judge took
into account mother’s refusal to let him interview the child, inferring the
child would have said he wanted to see grandparents.

                        Before making its ruling
the trial judge had asked the parties to confer to agree to a schedule
themselves, stating he was “open to [mother’s]
suggestions . . . and more than sympathetic to the fact
that [she had her] own life to lead.”  He
merely asked that she be reasonable and he would “respect [her] and protect
[her] and [her] status as the parent, to control the activities of the
child.”  Grandmother proposed some
alternatives that gave mother “latitude” that did not “interfere with her
life,” as spelled out to the court, but mother again stated she was “opposed to
any court-ordered visitation.”  She did
not completely rule out “the idea of [supervised] visitation at her discretion”
but she did not want any obligation to allow visitation. 

                        In the absence of an agreement,
the court set up a schedule for unmonitored visitation quarterly, for eight
hours on a Sunday, with six weeks’ advance notice.  If it was inconvenient, mother had the option
to postpone the visit until the next Sunday. 
Grandparents were to pick up and drop off the child.  Grandmother was ordered not to speak ill of
mother or her fiancée and was required to prevent other “adult[s] in the room”
from doing so.

                        After the order was
filed mother filed a petition for writ of
supersedeas to stay enforcement of the visitation order pending appeal,
which we denied.

 

DISCUSSION

 

>1. 
Rules of Court Violation

                        Court rules require each
argument be set out in a separate section with a heading summarizing the
issue.  (Cal. Rules of Court, rule
8.204(a)(1)(B).)  Mother grossly violated
this rule, by setting out cryptic headings and by failing to limit arguments to
one section, repeating the same claims throughout her sometimes stream of
consciousness and overly lengthy briefs. 
To the extent we can determine a claim we address it.  Mother’s other arguments are forfeited.  (Alameida
v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59.)

 

 

 

2.  Unconstitutionality of Section 3102

                        Section 3102,
subdivision (a) provides that “[i]f either parent of an unemancipated minor
child is deceased, the . . . grandparents of the deceased
parent may be granted reasonable visitation with the child during the child’s
minority upon a finding that the visitation would be in the best interest of
the minor child.”

                        Mother first contends we
should declare this section facially unconstitutional.  It appears the basis for this argument is
that the statute violates her right to privacy, which mother concedes has not
previously been the basis for a constitutional challenge to section 3102. 

                        The
California Constitution provides that “[a]ll people are by nature free and
independent and have inalienable rights,” including privacy.  (Cal. Const., art. 1, § 1.)  Mother cites language in the ballot pamphlet
provided to voters in the election where the right to privacy was added to the
constitution, which stated in part:  “The
right to privacy . . .  
protects . . . our freedom to associate with the
people we choose.”  (Voter Information
Guide, Proposed Amends. to Cal. Const. with arguments to voters, Gen.Elec.
(Nov. 7, 1972) p. 27.) 

                        Mother
points to American Academy of Pediatrics
v. Lungren (1997) 16 Cal.4th 307 where the court overturned a statute
requiring a minor girl to obtain consent from her parents or a judicial order
allowing her to have an abortion.  In so
doing, it stated, “We conclude that, under the California constitutional
privacy clause, a statute that impinges upon the fundamental autonomy privacy
right of either a minor or an adult must be evaluated under the demanding
‘compelling interest’ test.”  (>Id. at p. 342.)  But mother fails to make any analysis under
this test, or any other for that matter. 
She essentially repeats the same conclusions that the court did not rely
first on the presumption parents act in the best interests of their children
and her parental rights were violated because there was no clear and convincing
evidence of harm or the child’s best interest. 
This is not a viable privacy argument.

                        Mother
relies heavily on Von Eiff v. Azicri
(Fla. 1998) 720 So.2d 510  where the
court overturned a Florida statute mandating grandparent visitation when a
grandchild’s parent dies, was divorced, or deserted the child so long as
visitation was in the best interest of the child.  (Id.
at p. 511.)  The court held the statute
unconstitutional in violation of a parent’s right of privacy because it did not
require the grandparent to prove substantial harm to the child.  (Id.
at p. 514.)  We decline to consider >Von Eiff. 
It is not binding authority and its holding does not mandate the
same result here just because, apparently like Florida’s, California’s
constitutional right to privacy is broader than that contained in the federal
Constitution.  

                        Moreover,
in California “[t]he constitutional right to privacy has never been absolute;
it is subject to a balancing of interests.” 
(Jacob B. v. County of Shasta
(2007) 40 Cal.4th 948, 961.)  And mother
has not shown why her right of privacy makes section 3102 facially
unconstitutional.  In analyzing whether a
statute is facially unconstitutional, “‘“[w]e resolve all doubts in favor of
its constitutionality, and we uphold it unless it is in clear and
unquestionable conflict with the state or
federal Constitutions. 
[Citation.]”’  [Citations.]”  (Punsly
v. Ho (2001) 87 Cal.App.4th 1099, 1103-1104.)  “[T]he fact that the statute ‘“might operate
unconstitutionally under some conceivable set of circumstances is insufficient
to render it wholly invalid . . . .”’ [Citation.]”  (Sturgeon
v. Bratton (2009) 174 Cal.App.4th 1407, 1418.)  In addition to the fact mother cited no
California case that has found section 3102 facially unconstitutional, she has
not convinced us it is.  “A claimant who
advances a facial challenge faces an ‘uphill battle.’  [Citation.]” 
(Home Builders Assn. v. City of
Napa (2001) 90 Cal.App.4th 188, 194.) 
Mother has not scaled that hill.

                       

>3. 
Right to Visitation

                        Mother
next contends section 3102 is unconstitutional as applied.  We disagree. 
We review an order for grandparent visitation using the deferential
abuse of discretion standard viewing the evidence most favorably in support of
the order.  (Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182 (>Rich).) 
We do not reverse an order unless it would be unreasonable for any judge
to decide the same way.  (>Ibid.) 
Mother has not shown the court abused its discretion.   

                        “A
fit parent has a federal due process
constitutional right to make decisions concerning the care, custody, and
control of his or her child.  [Citing >Troxel v. Granville (2000) 530 U.S. 57,
56, 58, 62 [120 S.Ct. 2054, 147 L.Ed.2d 49] (plur. opn. of O’Connor, J.) (>Troxel).]  This includes the right to limit visitation
of the child by a third party, even a grandparent.  But the right is not absolute.  A family law court may order grandparent
visitation upon a proper showing.”  (>Rich,
supra, 200 Cal.App.4th at p. 1178.)         

                        In
analyzing whether grandparent visitation is proper under section 3102,
subdivision (a), the court must start with the presumption a fit parent acts in
the best interests of the child.  >Troxel is the seminal case setting out
this presumption.  In >Troxel a plurality of the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Supreme Court held a Washington state visitation statute, as
applied, was unconstitutional because it infringed on the parent’s fundamental
“interest . . . in the care, custody, and control of their children . . . .”  (Troxel,
supra, 530 U.S. at pp. 65, 67.)  The basis of the finding was that the statute
itself was “breathtakingly broad,” giving “‘[a]ny person’” a right to visit if
it was in the best interest of the child. 
(Id. at p. 67, italics omitted.)  The state court did not give any “special
weight” to the parent’s decision about the children’s best interests.  (Id.
at p. 69.) 

                        The
state court relied on “slender findings” the grandchildren would benefit from
spending time with the grandparents’ large family, including the
grandchildren’s cousins, that loved the grandchildren and who would provide
musical opportunities; and it would be beneficial for the grandchildren to
spend “quality time” with the grandparents. 
(Troxel, supra, 530 U.S. at p. 72.) 
Further, the trial court acted on a presumption in favor of visitation
by the grandparents.  (>Ibid.) 


                        California
cases routinely follow Troxel and
begin their analysis with its holding that the court must start with and apply
the presumption a fit parent will act in the child’s best interest.  (See, e.g., Hoag v. Diedjomahor (2011) 200 Cal.App.4th 1008, 1016 (>Hoag); Rich, supra, 200
Cal.App.4th at p. 1180.)  Given that
presumption, a recent appellate court decision ruled, a grandparent must prove
by clear and convincing evidence that denying visitation would not be in the
child’s best interest, that is, it would be detrimental to the child.  (Rich,
supra, 200 Cal.App.4th at p. 1180;
see also Ian J. v. Peter M. (2013)
213 Cal.App.4th 189, 206 (Ian J.).)

                        Mother argues the trial
court here did not apply that presumption. 
She maintains the court focused on whether visitation would be
detrimental to the child, in violation of Troxel.  (Troxel,> supra, 530 U.S. at p. 69.)  She claims this ignores the presumption in
favor of parental fitness and gave her the burden of proof instead of
grandmother.  This argument has several
flaws.

                        First, mother
misapprehends or misapplies the presumption. 
She argues the court’s finding mother was unfit upended it.  But the presumption states a >fit parent acts in the child’s best
interest.  The very finding of unfitness
shows the court understood, analyzed, and applied the presumption.

                        Second, mother’s claim
is belied by language in the court’s decision. 
In making its ruling, both at the hearing and in the written order, the
court first stressed the presumption. 

                        Third, there is
sufficient evidence to support the court’s finding grandmother rebutted the
presumption.  The court found mother
unfit in connection with visitation because her refusal to allow the beneficial
relationship with grandparents to continue was based on her selfish reasons
without consideration of what was good for the child.

                        Further, the child had
had a strong and loving relationship with grandparents since birth.  This included regular visits.  Grandfather, especially, spent a lot of time
with the child engaging in a variety of activities.  The grandparents were an important and
integral part of his family.

                        Two
cases are instructive and support the trial court’s decision.  In Fenn
v. Sherriff (2003) 109 Cal.App.4th 1466 the surviving father objected to
grandparent visitation on the ground he was a fit parent.  But the grandparents put on evidence the
father had imposed unreasonable conditions on visitation, limiting it to one
hour every 10 weeks and requiring supervision by someone of the father’s choice
and payment in connection with supervision that cost over $5.75 per
minute.  

                        “Although
the fundamental right of parents to make decisions regarding the care, custody
and control of their children requires the court to give the decisions of fit
parents special weight, it does not necessarily preclude a court from ordering
visitation over the parents’ objection.” 
(Fenn v. Sherriff,> supra, 109 Cal.App.4th at pp.
1470-1471.)  “Giving the parent’s
determination ‘special weight’ is different than insulating the parent’s
determination from any court intervention whatsoever.  Troxel
does not support defendant’s suggestion that a fit parent’s decisions are
immune from judicial review.”  (>Id. at p. 1479.)  A parent’s decision about grandparent’s
visitation “is entitled to ‘special weight’ under Troxel—assuming both are fit parents—but no more.”  (Fenn
v. Sherriff, supra,> 109 Cal.App.4th at p. 1479, fn. omitted.)  Thus, Fenn
disposes of mother’s argument her wishes as to visitation be given conclusive
weight.

                        Similarly,
in Hoag, supra, 200 Cal.App.4th
1008 the court affirmed an order granting grandparent visitation.  In Hoag
the grandmother was “‘like a third parent,’” having lived with the children
since their birth.  (Id. at p. 1011.)  After her
daughter, the mother of the children, died, the grandmother filed a petition
for guardianship.  The grandmother
testified the father would not allow visitation; in the guardianship proceeding
the court ordered a visitation schedule. 
The father later agreed to voluntary visitation but then objected
because of the guardianship petition, stating the grandmother had “‘broke[n the]
trust’” between them.  (>Id. at p. 1012.)  He also raised spurious objections to the
proposed schedule.  (Ibid.)

                        The appellate court
found the father’s objection to visitation was “a desire to retaliate against
the grandmother for her attempt to take the children away from him.”  (Hoag,> supra, 199 Cal.App.4th at p. 1018.) 
Her desire for retaliation and her purported disrespect of him were not
in the children’s best interest but punished them “for the sins of the
grandmother.”  (Ibid.)  The court also
pointed to the father’s admission in closing argument that visitation would be
in the children’s best interest; only court-ordered visitation would be
harmful.

                        The same is true
here.  Although mother noted there were
substantive reasons that should prevent visitation, ultimately she admitted she
did not object to visitation, only if it was court ordered.

                        Additionally, we are not
persuaded by mother’s attempt to distinguish Hoag.  She claims it is
“disingenuous and not well[]reasoned.” 
(Boldface and underline omitted.) 
She also asserts the parents’ constitutional right was “denigrated and
impugned by a statute and a request by a third party who happens to be a
grandparent.”  Finally, she maintains >Hoag “has little to say” about the case
before us and is “inconsistent” with other case law and the parental
presumption.

                        These statements do not
amount to a reasoned legal argument as to why Hoag should not apply.  (>Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852.)   Rather they are merely bombast and show only
that mother does not agree with Hoag’s
result.

                        Mother points to several
other cases to support her claim, but all are distinguishable.  Ian J.,> supra, 213 Cal.App.4th 189 is
substantially different, as mother acknowledges.  There, the court reversed an order for
unsupervised grandparent visitation.  The
father was concerned the grandfather may have molested the father’s deceased
wife and may have engaged in inappropriate sexual conduct with his 9- and
13-year-old granddaughters.  In addition,
the granddaughters preferred not to visit with him, and the court erred by not
giving weight to the father’s and the granddaughters’ wishes.  (Id.
at pp. 202, 203, 208, 210, 211.)  There
are no comparable facts here.

                        In Rich, supra, 200
Cal.App.4th 1176, on which mother heavily relies for her argument “first means
first,” the court used this phrase to stress the presumption a fit parent has
the constitutional right to make decisions concerning his or her child’s care,
including a limitation on grandparent visitation.  (Id.
at p. 1178.)  But Rich also stated that right was not absolute, given a sufficient
showing by the grandparent.  (>Ibid.) 
The court affirmed the trial court’s decision to deny visitation because
the grandparent did not make a sufficient showing of why visitation would be in
the child’s best interest.  (>Id. at p. 1182.)  That is not the case here.

                        In Punsly v. Ho, supra, 87
Cal.App.4th 1099 the trial court did not apply the presumption of parental
fitness to decide the best interest of the child vis-à-vis visitation (>id. at p. 1109), dismissing the mother’s
concerns about the conduct of the visitation, including the grandparents’
“inappropriate language” (id. at pp.
1109-1110, fn. omitted).  Moreover the
court did not take into consideration the mother’s offer of visitation.  (Id.
at p. 1102.)  Here, the court not only
began with the presumption, it thoroughly considered mother’s concerns about
how visitation would proceed.  Moreover,
although the court sympathized with mother’s opposition to scheduled
visitation, it found that if visitation was at her discretion, “she would never
find the time to allow” it.  

                        Likewise in >Zasueta v. Zasueta (2002) 102
Cal.App.4th 1242, an order allowing the grandparents visitation was reversed
because the court failed to apply the presumption of parental fitness,
discounting the mother’s concern about language and alcohol use and the child’s
discomfort around the grandparents.  (>Id. at p. 1253.)  Again, that is not what happened in the case
before us. 

                        Finally, in >Kyle O. v. Donald R. (2000) 85
Cal.App.4th 848, the father, whom the court found was fit, was willing to allow
visitation.  He just did not want
court-ordered visitation.  He preferred a
flexible schedule, which was what the child had with her other
grandparents.  The grandparents did not
show the suggested unscheduled visitation was not in the child’s best interest
nor did they overcome the presumption the father would make decisions in the
child’s best interest.  Their only
evidence was the father’s hostility toward them.  But the hostility was due only to the
grandparents’ insistence on the schedule they preferred.  (Id.
at p. 864.)

                        Here, mother parroted
the Kyle O. spontaneity argument,
claiming she is willing to allow visitation and was only opposed to
court-ordered visitation.  She just wants
it to be on her terms and flexible.  In >Troxel, supra, 530 U.S. 57, one basis for the ruling was that the parent
had never completely denied visitation, but offered “meaningful visitation”
limited to a schedule convenient to her. 
(Id. at pp. 71, 72.) 

                        But the facts belie
mother’s claim.  She had essentially cut
off visitation with grandparents after father died.  The court did not find credible her claim she
would allow spontaneous visitation. 
Moreover, before the court made the order it asked mother for
suggestions about a schedule, pointing out it sympathized with her desire to
have unstructured visits.  It made
assurances it would “protect [her] and [her] status as the parent, to control
the activities of the child.”  Yet mother
refused to make any suggestions.

                        Mother argues she allows
visitation by the child’s other grandparents. 
Further the child is involved in activities and doing well.  But that is not the standard by which a petition
for grandparent visitation is evaluated.

                        Nor
are we persuaded by mother’s argument regarding the alleged hostility between
her and grandmother or between Sylvia and grandmother.  This evidence was disputed by grandmother and
there was other testimony grandmother had not displayed hostility toward mother.  While the court acknowledged some hostility,
it did not consider it significant enough to deny visitation.

                        Other cases have relied
on hostility to deny visitation but they are not comparable.  In Ian
J., supra, 213 Cal.App.4th 189,
the hostility arose based on the father’s fear of evidence of the grandfather’s
sexual misconduct.  (Id. at p. 208.)  In >Rich, supra, 200 Cal.App.4th 1176, among other things the grandmother
believed the mother “may have been responsible for [the father’s] death.”  (Id.
at p. 1178.)  In Kyle O. v. Donald R., supra,
85 Cal.App.4th 848 the only evidence the grandparents offered was the father’s
hostility, which was not sufficient to overcome the parental presumption of
fitness.  Moreover, the court discounted
it because it was based on the grandparents’ refusal to allow visitation.  (Id.
at p. 864.)  But none of these
persuade.  And, in any event, the order
challenged here prevented grandmother from making any derogatory statements
about mother.

                        In
finding mother’s refusal to allow visitation was not in the child’s best
interest, the trial judge noted she would not allow him to interview the
child.  He inferred from this the child
would have said he wanted to see grandparents. 
Mother argues that in no published case on third-party visitation has a
child ever been interviewed.  She
continues that it is the parents’ rights that control in visitation cases, not
what the child wants.  The parents’ rights
come first, it is true, but after taking those into account, the court then
considers the best interests of the the child. 
In Ian J., supra, 213 Cal.App.4th 189, the court relied in part on section
3042, which states that when a “a child is of sufficient age and capacity to
reason so as to form an intelligent preference as to custody or visitation, the
court shall consider, and give due weight to, the wishes of the child.”  Thus, it was perfectly reasonable for the
court here to try to determine the child’s preference by speaking to him.

                        In
sum, there was sufficient evidence grandmother rebutted the parental
presumption of fitness.  (>Ian J., supra, 213 Cal.App.4th at p. 208.) 


                        Taking another tack
mother argues the fact Rich, >Punsly, Zasueta and Kyle
determined there was no right to visitation while Hoag and Fenn allowed it
somehow violates equal protection.  Not
so.  “As a foundational
matter, . . . all meritorious equal protection claims
require a showing that ‘the state has adopted a classification that affects two
or more similarly situated groups in an unequal manner.’”  (People
v. Wutzke (2002) 28 Cal.4th 923, 943, italics omitted.)  Mother has made no such showing.  Further, “[t]here
is . . . no requirement that persons in different circumstances
must be treated as if their situations were similar.”  (People
v. McCain (1995) 36 Cal.App.4th 817, 819.)

                        A review of the cases
discussed above shows the courts applied section 3102 to the specific facts
before them.  Even Troxel acknowledged that “much state- court adjudication in this
context occurs on a case-by-case basis” and thus refused to hold nonparental
visitation statutes per se violated due process.  (Troxel,> supra, 530 U.S. at p. 73.) 

                       

DISPOSITION

 

                        The
order is affirmed.  Grandparents are
entitled to costs on appeal. 

 

 

                                                                                   

                                                                                    THOMPSON,
J.

 

WE CONCUR:

 

 

MOORE, ACTING P. J.

 

 

FYBEL, J.