Filed 4/27/17 Conservatorship of L.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


Conservatorship of the Person of L.M.

S.M.,

Petitioner and Appellant,

v.

B.M.,

Objector and Respondent.


G053162

(Super. Ct. No. 30-2014-00757701)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Jamoa Athena Moberly, Judge. Appeal dismissed.
John L Dodd & Associates and John L. Dodd for Petitioner and Appellant.
Law Offices of Jan Mark Dudman and Jan Mark Dudman for Objector and Respondent.
* * *
The court appointed S.M. as the limited conservator of her adult daughter, L.M., who is a 34-year-old “high functioning autistic with cerebral palsy like severe motor impairment.” The court also granted B.M. (L.M.’s father and S.M.’s former husband) unsupervised visitation with L.M. On appeal S.M. argues (1) the court lacked jurisdiction to order visitation for B.M. because L.M. herself retained the power over her own social contacts, and (2) by ordering such visitation, the court violated L.M.’s constitutional rights. We dismiss the appeal because S.M. lacks standing to bring it.

FACTS AND PROCEDURAL HISTORY

S.M. and B.M. married in 1981, legally separated in 2008, and were divorced in 2014. The legal separation judgment granted B.M. visitation with L.M. subject to agreement between B.M. and S.M., and further provided that such visitation would be supervised by a supervisor of S.M.’s choosing. In 2014, B.M. requested the court to modify his visitation to be unsupervised. Instead, the court found that, when the legal separation judgment was filed in 2008, the court had lacked jurisdiction to make any orders regarding visitation with L.M., an adult child. Accordingly, the court declared the visitation provisions of the legal separation judgment to be void.
In November 2014, S.M. petitioned for appointment as L.M.’s limited conservator, with all seven powers of a limited conservator specified in Probate Code section 2351.5. S.M. stated, inter alia, that L.M.’s mild mental retardation, cerebral palsy, and other mental and physical disorders qualified her as developmentally disabled under the Lanterman Act. S.M. further stated L.M. is unable independently to meet her own needs, lives with S.M. (who is L.M.’s primary parental caregiver), and has motor skills similar to a two- to five-year-old child and writing skills equivalent to a kindergarten student.
B.M. objected to S.M.’s petition, alleging L.M. is capable of having her needs met without a conservatorship. B.M. claimed S.M. sought appointment as L.M.’s conservator in order to deny him regular unsupervised contact with L.M.
In March 2015, B.M. petitioned for appointment as L.M.’s limited conservator. He alleged L.M. is “capable of making her desires known” and can “understand some of her medical issues and consent to some medical care.” B.M. further alleged that, although L.M. needs “an attendant 24/7, she is capable of playing and doing activities without constant supervision,” and that L.M. is “overly dependent on her mother.”
S.M. objected to B.M.’s petition, alleging he was unfamiliar with L.M.’s daily needs, and that he used abusive language against S.M. in L.M.’s presence.
B.M.’s trial brief asked the court to grant him three hours of unmonitored visitation every Sunday and on L.M.’s birthday, Thanksgiving, and Rosh Hashanah each year.
S.M.’s trial brief asked the court to continue B.M.’s monitored visitation.
At the trial on S.M.’s and B.M.’s competing petitions, S.M., B.M., and counsel for L.M. stipulated to S.M.’s appointment as L.M.’s limited conservator with five of the seven powers statutorily available to a conservator (if requested in the petition and granted by the court). (Prob. Code, § 2351.5, subd. (b).) As so stipulated, S.M.’s powers did not include control over L.M.’s right to control her own social and sexual contacts and relationships. (Id., subd. (b)(6).) The parties stipulated that B.M.’s unmonitored visitation was the only issue remaining before the court.
L.M. testified that she loves both her parents. She had visits with B.M. every Saturday at a library where they “read Harry Potter for one hour.” She likes visiting with B.M. but would not like to go to his home. She would not like to go shopping alone with him because she wants to be with S.M. She would not feel comfortable visiting B.M. alone “because he doesn’t know what [she] can and can’t eat.” B.M. has never made her feel uncomfortable and has never been angry with her.
S.M. testified as follows: L.M.’s dietary restrictions prevent her from eating high fat foods. One time when B.M. was visiting L.M. in the library, he tried to take away her Nintendo device and started hitting L.M. on the head with it. Although B.M. had helped L.M. use the bathroom when L.M. was younger, he had not done so since he and S.M. separated. S.M. had four main concerns about B.M. having unmonitored visits: She was worried (1) he would fail to keep L.M.’s diet; (2) he would not pay enough attention to L.M.; (3) he would be unable to help L.M. with going to the bathroom; and (4) he can have anger issues.
B.M. testified as follows: He believes L.M. is overly-dependent on S.M., and that L.M. possesses the capacity independently to eat food, urinate, and use electronic entertainment devices. L.M. is disabled and cannot independently do things like cook for herself, make her own bed, and defecate. L.M. generally requires constant supervision, but she would be safe in a place such as her room. L.M.’s dietary restrictions consist of being partially lactose intolerant. Since separating from S.M., B.M. has helped L.M. use the bathroom during urination, defecation, and menstruation. B.M. denied telling the court investigator that L.M. is able to complete all activities of daily living without assistance and was able to make her own decisions regarding her medical care, education, and placement. B.M. also denied being preoccupied with sports and not paying attention to L.M. during their visits.
B.M.’s wife testified she would have no problem with L.M. visiting her home, that B.M. tries to see L.M. every week, and that the wife had recently gone to a restaurant with S.M., L.M., and B.M., where L.M. ate French fries and fried fish.
A witness testified to seeing B.M. yelling at S.M. (using the “F” and “B-word”) and looking angry in 2013 at a Special Olympics practice.
A court investigator concluded B.M. was not suitable to be L.M.’s conservator, but recommended that he receive unmonitored and extended visits with L.M.
The court found it would be in L.M.’s best interests to develop her relationship with B.M. further and that no evidence showed that monitored visits were necessary. The court granted B.M. unmonitored visits on every Sunday, the first evening of Rosh Hashanah, and L.M.’s birthday.

DISCUSSION

S.M. Lacks Standing to Bring This Appeal
“The right to appeal is purely statutory.” (Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 67.) Under Code of Civil Procedure section 902, only an aggrieved party may appeal. This rule is jurisdictional and cannot be waived. (Gregory D., at p. 67.) A person is aggrieved if his or her own “rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision.” (In re K.C. (2011) 52 Cal.4th 231, 236.) “Injurious effect on another party is insufficient to give rise to appellate standing. A ‘party cannot assert error that injuriously affected only nonappealing coparties.’” (Gregory D., at pp. 67-68.)
To determine whether S.M. is aggrieved by the court’s order allowing B.M. unmonitored visitation with L.M., “we must therefore precisely identify [S.M.’s] interest in the matter.” (In re K.C., supra, 52 Cal.4th at p. 236.)
S.M. argues she is aggrieved by the court’s order because she “must facilitate” B.M.’s visits with L.M. and because she could be held in contempt if she fails to comply with the visitation schedule. She argues that being “subject to contempt if she does not facilitate visitation [citation] . . . should be sufficient to confer standing,” but cites no legal authority for that proposition.
B.M. counters that the court’s order “does not specifically require S.M. to do anything.” “S.M. is not compelled to transport L.M. to visitation or to pick her up at the end of visitation.” B.M. also points out that “S.M. was not granted the power to direct L.M.’s social activities.”
Under Probate Code section 2351.5, subdivision (b), a “limited conservator does not have any of the following powers or controls over the limited conservatee unless those powers or controls are specifically requested in the petition for appointment of a limited conservator and granted by the court in its order appointing the limited conservator: [¶] (1) To fix the residence or specific dwelling of the limited conservatee. [¶] (2) Access to the confidential records and papers of the limited conservatee. [¶] (3) To consent or withhold consent to the marriage of, or the entrance into a registered domestic partnership by, the limited conservatee. [¶] (4) The right of the limited conservatee to contract. [¶] (5) The power of the limited conservatee to give or withhold medical consent. [¶] (6) The limited conservatee’s right to control his or her own social and sexual contacts and relationships. [¶] (7) Decisions concerning the education of the limited conservatee.”
Pursuant to the parties’ stipulation, the court’s order appointing S.M. the limited conservator of L.M. did not grant S.M. the third or sixth power listed in Probate Code section 2351.5, subdivision (b). Consequently, L.M. retained the right to control her own social contacts and relationships.
S.M. lacks standing because her appeal seeks only to protect the rights of L.M., who has not appealed. S.M. does not purport to be appealing on L.M.’s behalf. L.M. was represented by her own attorney in the proceedings below. S.M. asserts she must “facilitate” the visitation, but does not specify exactly what is required of her in this respect. She has thus failed to show her own “rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision.” (In re K.C., supra, 52 Cal.4th at p. 236.) That she might be held in contempt if she affirmatively prevents the visitation must be considered a remote and speculative consequence of the court’s order.
Accordingly, S.M. lacks standing to bring this appeal.

DISPOSITION

The appeal is dismissed. B.M. shall recover his costs on appeal.



IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



THOMPSON, J.