Filed 7/31/17 In re Guardianship of K.S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


In re Guardianship of K.S., et al., Minors.

GRACE SCHELLHOUS,
Petitioner and Respondent,
v.
BRIANNE JOHNSON,
Objector and Appellant.


A149354

(Humboldt County
Super. Ct. No. PR150324)


Objector Brianne Johnson (Mother) appeals from a probate court order granting a petition by Grace Schellhous to be appointed guardian of two of Mother’s minor children, K.S. and T.S. Mother argues that the probate court denied her the opportunity to be heard in connection with the petition, and abused its discretion in ordering visitation at the discretion of the guardian. We conclude that Mother has not demonstrated any error by the probate court, and we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition for Guardianship
On December 31, 2015, Grace Schellhous filed a petition pursuant to Probate Code section 1510 for appointment as temporary and permanent guardian of siblings K.S., then age 12, and T.S., then age 10. The children’s father (Father) nominated Schellhous as guardian of both children, and Schellhous, Father, K.S., and T.S. all consented to the appointment.
In support of the petition, Schellhous submitted a declaration in which she stated that she was currently the full-time care-provider for the children, that she had been so “off and on for approximately 6 years,” during which Father was her live-in boyfriend; that she and Father ended their dating relationship just before Thanksgiving 2015; and that Father left the then-shared residence, but she and Father remained friends and agreed that the children should remain in her care and custody and should continue to attend the elementary school they had been attending since September 2015. Schellhous’s declaration continued: “Mother lives in a one-bedroom 5th-wheel trailer . . . together with her 5 year old [child] and her 1-year-old twins. She cannot provide care and custody for [K.S. and T.S.] at this time, and it does not appear that she will be capable of doing so at any time in the near future. [¶] I have had years of experience dealing with Mother, sharing information regarding [K.S. and T.S.], and making decisions regarding [their] best interests. Mother is low functioning, incapable of addressing [their] best interests on most occasions, incapable of recognizing [their] wishes, and is sometimes physically violent (or at least inappropriate) with either/both minors herein. . . . [B]oth minors desire to remain in my care and custody . . . .” Schellhous further stated that K.S. has a severe case of scoliosis for which she is required to perform daily exercises and wear a brace, that Mother does not allow K.S. to perform the exercises, does not facilitate K.S.’s home treatment, and requires K.S. to perform physical functions, including picking up the twins, changing their diapers while standing up, and performing other babysitting duties, all contrary to the instructions of K.S.’s physician. Schellhous stated that, unlike Mother, she could meet and accommodate K.S.’s medical needs.
A hearing on the petition for appointment of temporary guardian was held on February 8, 2016. Mother appeared in pro per and testified. The court granted the temporary guardianship, “subject to a full evidentiary hearing following investigation by court investigator.” The parties were ordered to mediation, but the mediation did not take place because the mediator referred the matter to Child Welfare Services. The court continued the petition for appointment of permanent guardian to April 11, 2016, to allow the court to receive results of the Child Welfare Services investigation, and the parties were re-referred to mediation.
Meanwhile, Mother had filed a Petition for Termination of Guardianship, and the court set that petition for hearing on April 11 “to coincide with other matters.”
The Court Investigator’s Report (Report) was filed on April 11, 2016. The report was accompanied by social histories of Schellhous, K.S. and T.S., prepared by Schellhous, a letter from Father supporting the petition, a declaration from Mother opposing the petition and five certificates reflecting awards to K.S. from school. The Report included accounts of the investigator’s visit to Schellhous’s home and interviews with K.S., T.S. and Schellhous, an evaluation, and a recommendation that Schellhous’s petition for permanent guardianship be granted. The investigator reported that both minors “shared stories of either being physically abused or watching their young half-siblings suffering physical abuse and neglect. [K.S. and T.S.] pray the Court will allow ‘Grace’ to become their permanent guardian. They want to stay with her ‘forever.’ ” With respect to visitation, the investigator reported, “[K.S. and T.S.] request they not be forced to visit their mother without supervision. Their maternal grandfather, Mark Johnson, also frightens them. They do not desire to be present at the pre-arranged visitation. They do wish to visit their half-siblings and will see their mother at that time. The minors, and petitioner, also request these pre-arranged visits occur in a neutral and public location.”
At the April 11, 2016 hearing, Schellhous requested the matter be set for a contested hearing. The court granted Mother’s request for a continuance to obtain counsel, rescheduled the matter for April 25, and ordered one hour per week of supervised visitation for Mother.
Mother filed a second Petition for Termination of Guardianship on April 21, 2016.
On April 25, 2016, Mother appeared in pro per, accompanied by her father, Mark Johnson. Both of them addressed the court. Mother stated she wanted the matter to proceed on that day, but the court scheduled a pretrial conference for June 13, by which time witness lists and pretrial statements were to be filed. The hearing was set for June 27.
Mother appeared at the June 13, 2016 pretrial conference, and stated she would be calling Mark Johnson as a witness and subpoena a second witness. The contested hearing remained set for June 27.
B. Evidentiary Hearing
Mother appeared at the June 27, 2016 hearing. Schellhous’s counsel called two witnesses, Karan Appelquist and Andrea Sullivan, both of whom Mother cross-examined. Because of time constraints, the matter was continued to June 28 at 10 a.m. for a second day of hearing.
Mother appeared on June 28, 2016, and called social worker Juan Carlos Enriquez, who had been subpoenaed. Enriquez was examined by Mother, cross-examined by Schellhous’s counsel, and questioned by the court. Schellhous’s counsel called court investigator Margaret Catherine Halliday, who wrote the Report, and examined her; Mother cross-examined. The Report was received into evidence. Schellhous’s counsel called witness Joyce Church and examined her; Mother cross-examined. Schellhous was then called to the stand, and at the end of her counsel’s direct examination, the court continued the matter to July 1, 2016 at 10:30 a.m. because of time constraints.
Mother did not appear on July 1, 2016, nor did her witness, Mark Johnson. The clerk’s minutes reflect the court’s efforts to reach Mother: “The Clerk calls Mother’s cell phone; Mother did not answer and her mailbox is full and unable to accept more messages. [¶] The Bailiff has called the matter in the hallway and there is no response. [¶] Mother is not in custody of the Humboldt County Correctional Facility.” The court found that Mother waived her right to cross-examine Schellhous, addressed some evidentiary matters, and then denied Mother’s petition to terminate the guardianship and granted Schellhous’ petition for permanent guardianship, explaining on the record as follows:
“The testimony of witnesses and family acquaintances Karen Almquist [sic], Andrea Sullivan was credible and compelling. These witnesses had known [Mother] for a length of time and were able to furnish the Court with a relevant perspective of the mother’s long-term parenting behaviors, and the witness participation in parenting and their concerns about [K.S. and T.S.].
“Testimony of witness teacher, Joyce Church, was also credible and compelling. She was able to furnish insight into recent event happenings concerning the [minors’] welfare.
“The testimony of witness Juan Enriquez was ambivalent problematic at best.
“The testimony of witness Kate Halliday [the court investigator] was credible and compelling. Ms. Halliday’s years of experience in probation matters dealing with families with dynamics like this before the Court gives the Court valuable insight into the desirability of the proposed Guardian’s living arrangement for the [minors].
“The testimony of proposed guardian was forthright and consistent.
“All of the forgoing witnesses lay out a formidable basis for a finding that custody with the mother is detrimental to the [minors], that it is in the best interests of the [minors] to have a permanent guardianship of the proposed permanent guardian.” Accordingly, the court found that it was detrimental to the children to remain with Mother, and that custody with the permanent guardian was necessary and in the children’s best interests.
The court then observed on the record that K.S. and T.S. had three half or full siblings, and stated, “these youngsters are all going to need to know one another and be able to realize that even though the older two siblings will be raised in a different household, that it’s the love and affection that siblings should cultivate for and with one another is . . . the focus of the Court right now. [¶] I would hope the guardian would—the guardian has discretion to grant visitation—the guardian would be cooperative, and would respect that the younger siblings and the older siblings should be able to maintain a reasonable amount of contact so that their lives don’t go down separate paths.”
The court referred the matter for mediation and ordered visitation. The terms of visitation were set out in the Order Appointing Guardian, filed July 1, 2016, in an attachment that was prepared by the Court:
“[K.S. and T.S.] shall have reasonable visitation with their younger siblings. Such visitation may be accomplished prior to mediation, either in person or by phone, in the sole discretion of the guardian and solely upon the terms of the guardian, pending mediation.
“Mother . . . may have visitation with [K.S. and T.S.], in the discretion of the guardian, Grace Schellhous, and such visitation shall be solely upon the terms of the guardian, or upon further order of the court.
“No visitation for the mother shall be arranged until there has been a mediation session in which all of the participants have had an opportunity to be involved or the mediator has exercised discretion to waive inclusion of a participant.”
The probate court’s Order Appointing Guardian and Letters of Guardianship were filed on July 1, 2016. Also on July 1, the court ordered mediation take place on August 11, 2016, scheduled the return from mediation for August 25, 2016, and set an annual review for June 26, 2017.
C. Post-Hearing Proceedings
On August 11, 2016, the mediator reported to the court that no agreement had been reached. The clerk’s minutes reflect that Mother appeared at the August 25 return from mediation and said she would be retaining an attorney and filing a motion for reconsideration. No motion for reconsideration was filed.
Eventually, Mother did retain counsel, and timely appealed the court’s July 1, 2016 order. In her Notice Designating Record on Appeal, she checked the box on the form that stated, “I elect to proceed: WITHOUT a record of the oral proceedings in the superior court. I understand that without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings.”
DISCUSSION
A. Principles of Appellate Review
A judgment or order challenged on appeal is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “All intendments and presumptions are indulged to support it on matters as to which the record is silent,” and it is the appellant’s burden to affirmatively demonstrate error. (Ibid.) This requires the appellant to present an adequate record for review. Appellant’s failure to do so requires us to resolve an issue against the appellant. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.) An appellant must “[p]rovide a summary of the significant facts limited to matters in the record” (Cal. Rules of Court, rule 8.204(a)(2)(C)), and must “cite the particular portion of the record supporting each assertion made.” (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.)
An appellant must present reasoned argument and citations to legal authority to support claims of error. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) “[C]iting cases without any discussion of their application to the present case results in forfeiture” of legal arguments. (Ibid.) “We are not required to examine undeveloped claims or to supply arguments for the litigations.” (Ibid.) Furthermore, “ ‘a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived.’ ” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fn. omitted.)
With these principles in mind, we turn to the issues Mother raises on appeal.
B. Analysis
1. Applicable Law
The pertinent law governing Probate Code guardianships has been summarized as follows: “Under the Probate Code, a court may appoint a guardian for a minor ‘if it appears necessary or convenient.’ (Prob. Code, § 1514, subd. (a).) If the court grants custody to a nonparent, it may do so over a parent’s objection only if it finds that custody with the parent is detrimental to the child and that custody with the nonparent is necessary in the child’s best interest. (Fam. Code, § 3041, subd. (a).) While the child’s health, safety, and welfare, and any history of abuse or substance abuse by a parent are relevant (Fam. Code, § 3011), ‘the critical finding of detriment to the child does not necessarily turn on parental unfitness. It may be based on the prospect that a successful, established custodial arrangement would be disrupted.’ (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1123; see Fam. Code, § 3041, subd. (c).) If it is not in the child’s best interest to remain in a parent’s custody, the preference is for custody with ‘the person or persons in whose home the child has been living in a wholesome and stable environment.’ (Fam. Code, § 3040, subd. (a)(2).) The parent’s rights over the child are suspended for the duration of the probate guardianship. (Fam. Code, § 7505, subd. (a); Guardianship of Ann S., supra, at p. 1124.) However, the court retains discretion to grant visitation, and may terminate the guardianship on a petition by the guardian, a parent, or the child, based on the child’s best interest. (Id. at pp. 1123–1124; [Prob. Code,] § 1601.)” (Guardianship of H.C. (2011) 198 Cal.App.4th 1235, 1245, fn. omitted.)
2. Due Process
“The state and federal Constitutions guarantee no state shall deprive parents of [their fundamental] interest in their children without due process of law . . . .” (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777.) Due process requires that before depriving a parent of her interest “in the companionship, care, custody, and management” or her children, she must be afforded “adequate notice and an opportunity to be heard.” (In re B.G. (1974) 11 Cal.3d 679, 688-689.) Mother claims that she was denied her due process right to be heard when, on the third day of the contested hearing, “[M]other confused her times and was not in court to present her evidence.” Mother’s statement that she failed to appear in court because she “confused her times” is not supported by any citation to the record.
The record before us shows that Mother was present at the pretrial conference and the first two days of the contested hearing. She cross-examined Schellhous’s witnesses, and presented one of her own witnesses. She was present when the court continued the hearing to a third day, and did not object. The record does not show that she requested a continuance, or subsequently objected to the court having proceeded with the hearing in her absence. And Mother cites no authority to suggest that her failure to appear at the third day of the contested hearing constitutes a denial of her due process rights. Instead, she cites Lewis v. Superior Court (1999) 19 Cal.4th 1232, a case in which our Supreme Court discussed definitions of “hearing” and quoted Webster’s New International Dictionary (3d ed. 1981) as “defining ‘hearing’ as an ‘opportunity to be heard or to present one’s side of a case.” (Id. at p. 1247.)
In these circumstances, even if we assume that Mother has not forfeited her due process argument by failing to raise it below, she fails to show that she was in any way deprived of the opportunity to be heard.
3. Visitation
The court’s visitation order in a guardianship proceeding will be overturned only when the court’s findings and conclusions clearly demonstrate an abuse of discretion. (Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 1432 (Kaylee J.).) “The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Here, Mother claims that the court abused its discretion in providing her with visitation “solely upon the terms of the guardian, or upon further order of the court,” citing three cases in which visitation solely in the discretion of the guardian was viewed as contrary to the best interest of the minors. The claim lacks merit.
Mother has not provided a record containing any of the testimony on which the court relied to determine the best interests of K.S. and T.S. Mother therefore cannot show an abuse of discretion by showing that the probate court’s order is not supported by substantial evidence, much less that the court contravened uncontradicted evidence. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527.) And Mother does not argue that the court failed to follow the law or had a mistaken view about the scope of its discretion. (See Eisenberg et al., Cal. Practice guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 8:87, p. 8-42 [explaining the abuse of discretion standards and citing cases].)
Moreover, Mother does not explain how the cases she cites, which arose in juvenile courts, should be applied in the context of probate guardianship. Two of Mother’s cases, In re Kyle E. (2010) 185 Cal.App.4th 1130, 1131, and In re Hunter S. (2006) 142 Cal.App.4th 1497, 1500, 1506 (Hunter S.), concern visitation in the context of ongoing dependency proceedings, before the termination of parental rights. In those circumstances, even after reunification services have been terminated, meaningful visitation is “pivotal to the parent-child relationship” because under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A) a parent “has a final chance to avoid termination of parental rights if she can show she has maintained regular contact and visitation with her child, and the child would benefit from continuing the relationship.” (Hunter S., supra, 142 Cal.App.4th at pp. 1504-1505.) The third case, In re James R. (2007) 153 Cal.App.4th 413, 435 (James R.) arose in the delinquency context, where the Court of Appeal reviewed a visitation order that was part of a permanent plan for a delinquent minor, which envisioned the return of the minor to his home. All three cases were decided under the juvenile court law (Welf. & Inst. Code, § 200 et seq.), which “recognizes the importance of the preservation and strengthening offamily relationships for both dependent and delinquent minors.” (James R., supra, 153 Cal.App.4th at p. 430, discussing Welf. & Inst. Code, § 202, subd. (a).) In those contexts, visitation is a necessary and integral component of family reunification. (Id. at p. 435.)
Probate guardianship is different from a dependency or delinquency proceeding. Parental rights are terminated for the duration of the guardianship (Fam. Code, § 7505, subd. (a)), and the probate court may not order reunification services. (Kaylee J., supra, 55 Cal.App.4th at p. 1432.) Mother provides no authority that visitation in a probate guardianship is or should be subject to the same analysis as visitation in a juvenile court proceeding, where visitation is a component of family reunification.
In sum, Mother has not shown that the probate court abused its discretion in issuing its visitation order.
DISPOSITION
The probate court’s order is affirmed. Schellhous shall recover her costs on appeal.









_________________________
Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.