Guardianship of S.D.

Filed 6/21/07 Guardianship of S.D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of San Bernardino County. Michael J. Torchia, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Robert Frederick Smith for Petitioner and Appellant.

Stephen Temko for Objector and Respondent.

No appearance for Minors.

Petitioner Stephen D. (father) appeals from the trial courts denial of his petition to terminate the guardianship of his two children, S.D. and D.D. (the children). The childrens guardian is their maternal grandmother. Fathers primary contentions are that the evidence presented at trial showed that he had overcome his gambling and substance abuse problems, which previously made him an unfit parent, and that he had preferential right to custody of the children. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, after approximately 15 years of marriage, father and mother (the parents)^[1]separated. Mother had an alcohol abuse problem, and father had alcohol, drug, and gambling problems. S.D. was approximately 12 years old, and D.D. was approximately 5 years old at that time. Mother left California with the children and moved to Nevada, near her mother, Lois M. (the grandmother). Father filed an action for dissolution in California and was granted temporary physical custody of the children, with various restrictions placed on his conduct. The court appointed Dr. Robert Suiter to evaluate the parties and the children. Father violated the courts instructions, so the court granted physical custody to mother in May 2004, provided she resided with the grandmother. A few months later, mother left the grandmothers home, and the court granted temporary custody to the grandmother. The grandmother then filed a petition for guardianship.

A hearing was held on the grandmothers petition for guardianship, and the court granted the petition. In its order, the court noted Dr. Suiters opinion that it would be clearly detrimental to place the children in either parents care. Dr. Suiter described the parents as dysfunctional, self-centered, and childlike. The court opined that fathers destructive behavioral patterns, involving substance abuse and gambling, deprived the children of a stable home and the necessities of life. Although father testified that he was committed to changing his lifestyle, the court questioned his truthfulness, since the court believed he had used methamphetamine recently. Furthermore, the court noted that father had no drivers license and was reliant on his girlfriend for transportation. In addition, father insisted that he was only a recreational gambler, when there was evidence to the contrary. The court also highlighted fathers deficient parenting skills. During the time the court granted temporary custody to father, father blatantly disregarded the courts instructions and drove with the children, engaged in serious drug use, continued to gamble, and left the children with his girlfriend. In granting the grandmothers guardianship petition, the court noted that placing the children in the grandmothers care was in their best interests. She had provided a stable, secure, and loving home for them and ensured that their needs were met. The courts order was filed on December 28, 2004.

On August 5, 2005, father filed a motion to terminate the guardianship. The court held a hearing on the motion on April 6, 2006. Father testified that he had not used any drugs since the last hearing in 2004. He submitted negative drug test results into evidence. As to alcohol, he testified that he consumed a couple of drinks over the holidays, but that he had not had any more than two drinks on any day since the last hearing. Father further testified that he gave up gambling and had only gone to play bingo and slot machines with his girlfriends family over the holidays. He also said that he had obtained a drivers license. Father mentioned that he lived in a four-bedroom house with his girlfriend and that there was a separate bedroom for each child.

Fathers girlfriend also testified at the hearing. She testified that father gambles by playing bingo perhaps twice per month. She also stated that she had not seen father drunk since the last hearing.

The grandmother testified concerning the children. She testified that S.D. was involved with the Junior Naval Officer Training Corps, which she referred to as ROTC, and playing football. She also said that she was a volunteer with those activities. S.D. had just returned from a five-day stay on a naval base for ROTC. The trip required teacher approval and a certain grade point average (GPA) to attend. S.D. had a 3.33 GPA. The grandmother testified that she had not had any disciplinary problems with S.D. She also stated that he had a lot of friends and that there were always kids at the house.

The grandmother further testified that D.D. attended a small, private school and that she was doing very well there. The grandmother was looking for something more challenging for the next year, since D.D. was excelling past her age group at her current school. D.D.s best friend lived next door to them. D.D.s extracurricular activities included skiing, violin lessons, gymnastics, and roller skating.

The grandmother testified that both children had regular medical and dental checkups, and that they were in good health. She further said that the children loved father and enjoyed visiting him, but that, at the end of the visits, they were ready to come home and be with their friends. Overall, the grandmother had observed improvement in the children in that they had become very secure in their lives, and they trust and feel safe. She opined that they were essentially enjoying their lives. The grandmother said that she and her husband loved the children dearly.

After taking the matter under submission, the court issued its ruling and denied the motion to terminate the guardianship. The court commended father for his efforts to address his problems, but noted its concern as to whether or not he had adequately addressed his addiction issues. The court stated that recovery from drug use or gambling habits was a long and arduous process and noted that there was no evidence that father was enrolled in any counseling. The only professional intervention father had occurred before the last hearing. The court was not convinced that father had completely erased [the] demons from his life. The court cited Probate Code section 1601, stating that it could terminate a guardianship when it served the childrens best interests to do so. The court also cited Probate Code section 1610, stating that it was in the childrens best interests to be raised in a permanent, safe, stable, and loving environment. The court then commented that prior to the establishment of the guardianship, the children had a traumatic and dysfunctional upbringing with the parents, who pursued their own addictive and self-centered lifestyles. In contrast, the children were now in a loving and secure environment, in which they were thriving emotionally, behaviorally, and academically. The court noted that father had not presented any evidence as to how removing the children from this environment would benefit them. Thus, the court found no compelling reason to disrupt the childrens lives by terminating the guardianship.

ANALYSIS

The Court Properly Declined to Terminate the Guardianship

Father contends that the court should have terminated the guardianship because there was unrebutted evidence that he had completely rehabilitated himself, and because he was a biological parent with a superior right to custody of the children. We conclude that the court properly maintained the guardianship.

A. Standard of Review

Upon petition of the guardian, a parent, [or] the ward, . . . the court may make an order terminating the guardianship if the court determines that it is in the wards best interest to terminate the guardianship. (Prob. Code, 1601.) The decision whether to terminate a guardianship is committed to the sound discretion of the trial court. [Citations.] It is an inquiry that is particularly founded on application of the trial courts experience with human conduct. (Guardianship of L.V. (2006) 136 Cal.App.4th 481, 488 (L.V.).) Thus, the trial courts determination is subject to deferential review on appeal. (Ibid.) Our function on appeal is very limited. We cannot reweigh the evidence; we must view the evidence in the light most favorable to the judgment, giving every reasonable inference which could be drawn from the evidence in support of the judgment. (Guardianship of M.S.W. (1982) 136 Cal.App.3d 708, 711.)

B. There Was No Abuse of Discretion

The same judge that granted the guardianship petition also presided over the hearing on the motion to terminate the guardianship (the hearing). Thus, the court was thoroughly familiar with the case, and it properly determined that it was in the childrens best interests to maintain the guardianship. The children had lived with the grandmother for nearly two years by the time of the hearing. The evidence presented at the hearing showed that the children were happy and secure living with the grandmother. Both children were doing well academically. They had friends and were busy with many extracurricular activities. Furthermore, the grandmother was meeting all of their needs. She was supportive and involved with the childrens activities, and she made sure that the children had regular medical and dental checkups. The grandmother testified as to how much she loved the children and was glad to make sacrifices for them, in order to see them grow and be happy. Furthermore, as observed by the court, father presented no evidence as to how removing the children from their secure living environment would be in their best interests. In view of the evidence presented at the hearing, we conclude that the court properly exercised its discretion in denying fathers motion to terminate the guardianship.

Father argues that the court should have granted the motion simply because he had rehabilitated himself. However, [t]his is not the statutory standard in California law. (L.V., supra, 136 Cal.App.4th at p. 489.) Prior to 2002, Probate Code section 1601 stated, in pertinent part: Upon petition of the guardian, a parent, or the ward, the court may make an order terminating the guardianship if the court determines that it is no longer necessary that the ward have a guardian or that it is in the wards best interest to terminate the guardianship. (L.V., supra, 136 Cal.App.4th at p. 489.) In 2002, the Legislature amended section 1601 to state, in pertinent part: Upon petition of the guardian, a parent, or the ward, the court may make an order terminating the guardianship if the court determines that it is in the wards best interest to terminate the guardianship. (See L.V., supra, 136 Cal.App.4th at p. 490.) Thus, the Legislature eliminated the no longer necessary ground for termination of a guardianship. (Ibid.)At the same time, the Legislature amended Family Code section 3041, which is applicable to guardianship proceedings. (L.V., supra, 136 Cal.App.4th at p. 490.) The Legislature added three subdivisions to Family Code section 3041, which essentially stated that in the absence of proof to the contrary, removing a child from what has been a stable, continuous, and successful placement is detrimental to the child. (L.V., supra, 136 Cal.App.4th at p. 491; Fam. Code, 3041, subds. (c) & (d).) Further, when a child is in a stable placement, a finding of parental unfitness is not necessary to a finding of detriment to the child. (L.V., supra, 136 Cal.App.4th at p. 491; Fam. Code, 3041, subd. (c).) Consequently, now the best interest of the child is the sole criterion for termination of a guardianship. (L.V., supra, 136 Cal.App.4th at p. 491, italics added; see also Prob. Code, 1601.) Therefore, while fathers rehabilitation is commendable, it is insufficient to warrant removal of the children from their stable and secure placement with the grandmother.

Father further argues that the courts ruling was erroneously based on its own preconceived notion that recovery from drug use or gambling habits was a long and arduous process, rather than on the evidence presented at trial. The courts decision was based on the evidence, and its reasoning was properly founded on application of the trial courts experience with human conduct. (L.V., supra, 136 Cal.App.4th at p. 488.)

In addition, father claims that a competent parent has a preferential right to custody of his children. However, there is no legal authority that holds expressly or by necessary implication that natural parents have an automatic right to termination of a guardianship absent an express finding of their unfitness to care for the child, or that otherwise precludes the application of a best interest of the child standard to the termination of a guardianship. (L.V., supra, 136 Cal.App.4th at p. 494.) Father relies upon Guardianship of Case (1943) 57 Cal.App.2d 844, in support of his claim. That case was decided long before the amendment of Probate Code section 1601. At the time Case was decided, the best interest of the child was not the sole criterion in determining whether a guardianship should be terminated. Case is therefore irrelevant. Father also relies upon Guardianship of M.S.W., supra, 136 Cal.App.3d at p. 711, which was likewise decided pursuant to former Probate Code section 1601.

In sum, the court did not abuse its discretion in maintaining the grandmothers guardianship of the children.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

McKINSTER

J.

KING

J.

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^[1] Mother is not a party to this appeal.