Filed 4/28/21 Kennedy v. Miranda S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Thomas H. Schulte, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Patricia E. Kennedy, in pro. per, for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

INTRODUCTION

This appeal stems from an altercation between the parties to a related guardianship matter pending before us, Guardianship of K.S., case No. G058131, in which appellant Patricia Kennedy seeks to gain custody of her minor granddaughters, K.S. and K.S., from their mother, respondent Miranda S.[1] After securing temporary guardianship of the children, Patricia went to Miranda’s home to take custody of them. Words were exchanged and Miranda hit Patricia. The following day, Patricia applied for a domestic violence restraining order (DVRO) not only protecting her and her household, but also the two granddaughters. The matter was set for hearing with the guardianship matter, and ultimately, the trial court determined the children should return to their mother. In connection with its decision, the trial court decided to remove the granddaughters as protected parties under the DVRO. The latter decision is the one we affirm in this opinion.

FACTS

Miranda’s daughters, born in 2012 and 2016, were the product of her now-defunct marriage to their father, Alex S.[2] The family lived for a time with Patricia, her husband James, and a son from Patricia’s second marriage. However, in approximately August 2017, Miranda, Alex, and the girls moved out of Patricia’s home and into an apartment. When Alex and Miranda divorced, they initially shared custody of the girls. In October 2017, Patricia filed a petition for grandparent visitation, but it is unclear what the ultimate result was in that matter.[3]

The Guardianship Petition

On September 11, 2018, Patricia filed a petition in the probate court to be appointed guardian of the granddaughters. The petition alleged it would not be in the girls’ best interest to remain in Alex and Miranda’s care because they were unable to provide stability and a healthy environment for the children. Regarding Alex, Patricia alleged he had abandoned the children in October 2017, a few months prior to the divorce, because he had discovered Miranda was having a romantic relationship with a roommate the couple had taken on in their apartment named Will Jordan. Alex was now unemployed and adrift.

Her more explosive allegations were reserved for Miranda, however. Patricia claimed Will was a drug dealer who had gotten Miranda addicted to methamphetamine. She said he engaged in abuse toward Miranda and the girls – including suffocating, manhandling, and hitting them, yet Miranda was unable to prioritize her daughters’ needs because of her addiction which Will fed. Patricia also claimed Miranda was neglecting the children’s hygiene and was not ensuring they were regularly attending school.

On September 17, 2018, Patricia obtained temporary guardianship of the children on an ex parte basis pending a hearing on October 15, 2018. Both Miranda and Alex were apparently mailed copies of the application, but neither appeared for the ex parte hearing. Miranda later said she had received notice of the hearing but had car trouble, and by the time she appeared at the courthouse, the application had already been granted.

At the October 15, 2018 hearing, Miranda unloaded on Patricia, calling her dangerous, mentally ill, and willing to manipulate her granddaughters and the courts in order to retaliate against Miranda for what occurred in previous custody battles. The trial court decided to leave the guardianship in place until a new hearing could be held on March 4, 2019.

Incident Leading to DVRO

On September 17, 2018, the day Patricia was granted temporary guardianship, she went to collect her granddaughters from Miranda’s grandparents’ home, where Miranda and the girls had been living. Prior to going to the grandparents’ home, Patricia stopped at the Anaheim Police Department to seek assistance in the effort. She was told by police to park a few houses down and wait for them to arrive.

Rather than follow their instruction, Patricia approached the home and sent Miranda a text, telling her to send the girls outside. Miranda had been expecting Patricia and was feeling resentful that Patricia had somehow obtained custody of her children. After the girls were in the car, Miranda and Patricia began having words. As the police were driving up, the argument became physical, with Miranda striking Patricia on the side of the head.

The police officer on the scene, Officer Huynh, witnessed Miranda hitting Patricia, describing Patricia as backing away from Miranda. He immediately told Miranda to stop and she ran back inside the house. He admonished Patricia about not waiting for his arrival, and after she left, he spoke to Miranda. Miranda claimed Patricia would not leave after being asked to do so. She told Officer Huynh Patricia had “fraudulently got custody of her kids and . . . she lost control.” Miranda was cited for assault.[4]

About a month after the incident, Patricia filed an application for a DVRO against Miranda, listing herself as a protected person because of the assault but also listing her husband and the granddaughters as protected persons. Her application was granted and a temporary DVRO issued on October 19, 2018. Patricia included the granddaughters in the restraining order because she claimed to have discovered after taking custody of the girls that Miranda had punched the younger child in the stomach twice, which led to a visit to the pediatrician – and reports to Orange County Social Services Agency (SSA) and the police.[5]

Miranda filed a response to the DVRO, in which she called Patricia a “mentally ill, malicious, dangerous woman” who was not even given custody of her own children. A week later, Patricia filed a reply adding other serious allegations of abuse she claims the granddaughters suffered at Miranda’s hands, including “swaddling” the girls by wrapping them in blankets tied with duct tape and leaving them until morning; punching the younger child; urinating on the younger child and on a bed; doing drugs in front of the children; “doing sexual things to herself” in front of them; starving them; calling them names; threatening to kill them; and leaving them in a hot car.

The Proceedings

The family court held a hearing on the DVRO on December 12, 2018, and ordered investigations by Probate Court Services and SSA pursuant to Probate Code section 1513. It also ordered Skype calls and visitation for Miranda with her uncle monitoring the visits. The family court appointed Cheryl L. Walsh as guardian ad litem for the granddaughters, but only in the DVRO matter. The hearing was continued to January 30, 2019, and due to Miranda’s criminal case (stemming from the September incident) it was continued again.

Both sets of investigators filed their confidential reports, and at a March 4 hearing, the judge then presiding advised the parties they were available. He strongly urged the parties to read them because they articulated concerns about the motivations for Patricia’s bid for custody. Namely, the investigators felt Patricia’s current quest for custody of the granddaughters was reminiscent of the custody battles occurring during Miranda’s childhood.[6] The hearing was continued so the parties could obtain and read the reports.[7] Trial was eventually set to commence on July 10, 2019.

Trial on the DVRO

Both the DVRO and guardianship matters were heard by the same judge, but the DVRO matter was heard first. This was done for courtesy and for logistical reasons.[8] Miranda testified, denying any abuse against her daughters – including punching her daughter in the stomach, swaddling her kids with duct tape, and the other acts complained of in Patricia’s filings. The only thing Miranda admitted was striking Patricia in the head in her grandparents’ driveway.

Several witnesses called by Patricia testified in support of Patricia’s allegations about abuse.

After taking temporary guardianship of the granddaughters, Patricia had engaged a therapist. This therapist, Christine Golden, testified that both daughters had told her Miranda had punched the younger child in the stomach. Both told a story of the older sister hiding her younger sister under the bed in her great-grandparents’ room to keep Miranda from finding them. As their story went, Miranda found them anyway, pulled the younger one out, and punched her in the stomach again. Ms. Golden found the story credible because the older child was able to provide details about what had occurred before and after the incident, which would not normally be the case if the story were fabricated. She called in several reports to “CPS,” which we assume, is SSA, based on what she heard from the granddaughters in session.

Another Anaheim police officer, Officer Quinzio, testified he had interviewed the older child when Patricia brought her to the police station after discovering Miranda had punched the younger child. He said the older child seemed “happy and open” and told him she and her younger sister had been in bed and her sister kept getting out of bed. The child went to the restroom and when she returned, she saw Miranda punch her younger sister in the stomach “with a closed right fist” and then put her back in bed.[9] The child pulled her sister out of bed and took her to hide in their great-grandparents’ room. She did not tell Officer Quinzio where they hid in the room. Miranda found them in the great-grandparents’ room, took them back to their bedroom, and struck the younger child again in the stomach with a closed right fist. After that, the older child told Officer Quinzio that Miranda put her sister back in bed and then “stayed in bed with them[,] ate popcorn and watched TV for the rest of the time.” He thought she seemed “happy” and “energetic” telling the story; she was not crying and did not seem distressed. Officer Quinzio did not interview the younger child who was allegedly punched. And he was unaware if any report about the incident was made to SSA.

Patricia’s mother, Irene, testified she had seen Miranda “swat” the younger child on the behind twice after becoming angry at her during a visit. The younger child had looked at Miranda and asked her why she had punched her in the stomach, and Miranda yelled at her that it was lies. The “swatting” followed about 10 or 15 minutes later. Irene also testified the children had told her stories of Miranda urinating on a bed, which she was at a loss to understand. She also said the older child had mentioned her mother was using drugs. But on cross-examination by Miranda, Irene admitted Patricia had also been talking to her about Miranda’s drug use. Irene also admitted she had no suspicions Miranda was using drugs until Patricia had obtained temporary guardianship of the children. She did think Miranda had lost a significant amount of weight by the summer of 2017 and her complexion and demeanor had changed.

Patricia’s husband, whose relationship with Miranda was clearly very caustic, testified he’d seen Miranda “yanking” her younger daughter by the arm to get her in the car one time. However, this incident occurred after Patricia had taken temporary guardianship and there was a visitation exchange going on.

Patricia herself testified she saw bruising on the younger child’s belly to corroborate Miranda punching her in the stomach. She also described witnessing Miranda manhandling or pushing the children or turning them away when they sought affection from her, during the time the family was living with her.

Miranda’s uncle, Richard Anderson, testified the girls never seemed afraid of Miranda when he saw them interacting during monitored visitation – in fact, the girls seemed happy and excited to see her. His only concern was whether Miranda was financially able to provide for the girls’ needs. He did not think she posed any danger to the girls. He had told Patricia he thought she was being “punitive” toward Miranda and interfering with her visitation with the girls.

After almost two days of testimony, the trial court gave its tentative ruling on the DVRO. It ordered the DVRO for Miranda as against Patricia and her husband only. However, it chose to reserve decision on whether the DVRO should apply to the granddaughters until after it had taken evidence in the guardianship matter.

At the close of evidence in the guardianship matter, the trial court advised it would require further time to think on its decision, remarking the case was “one of the more difficult guardianship cases that I’ve done in my career, and I’ve done a lot of them.” Because of the combative relationship between Miranda and Patricia, the trial court wanted both parties to provide a plan in the interim for how they might address maintaining a civil relationship with the other if either were to get permanent custody of the girls. It also ordered Miranda to get a urine test for drugs under Family Code[10] section 3041.5.

Approximately two weeks later, the parties heard the court’s ruling, which was a statement of decision issued from the bench later memorialized in a minute order.[11] Miranda’s drug test was in, and while the trial court could not say she had never used drugs, it had no additional evidence to show she was currently using them. Patricia’s guardianship petition was denied because the trial court felt she could not meet the clear and convincing standard required under section 3041 to show giving custody back to Miranda would be detrimental to the children. The court denied the DVRO as it pertained to the children. Patricia’s temporary guardianship ceased and the children went back with Miranda.

Patricia has appealed both the trial court’s refusal to include the granddaughters in the DVRO and its denial of her guardianship petition. While Miranda was given notice and opportunity to file a respondent’s brief in this appeal, she did not. Therefore, we may decide both appeals based on Patricia’s submissions alone.

DISCUSSION

We review the grant or denial of a restraining order under the Domestic Violence Prevention Act (DVPA) (§ 6200 et seq.) for abuse of discretion. (See Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) And we normally do not review issues which have been rendered moot. (Id. at p. 419.) We believe this appeal has been rendered moot by our resolution of the appeal in the guardianship matter but, in any event, we find no abuse of discretion by the trial court.

The only issue necessary for us to address in this appeal is whether the trial court erred by reserving the domestic violence issues to be heard with the guardianship.[12] At the close of the DVRO evidence, the trial court chose to make a DVRO finding only as to Patricia, and not as to the granddaughters.

The trial court has the power to order the trial of one issue prior to the other on its own motion at any time. (See Code Civ. Proc., § 598.) Under section 3023, custody matters are to be given trial preference over other matters, “except matters to which special precedence may be given by law[.]” (Id., subd. (b).) And pursuant to section 3031, subdivision (a), a trial court is encouraged to avoid making a custody order inconsistent with an existing temporary DVRO unless it is impossible to create a consistent order and such an order is in the children’s best interests. Furthermore, “bench officers are ‘necessarily expected to play a far more active role in developing the facts, before then making the decision whether or not to issue the requested permanent protective order.’” (Gonzalez v. Munoz, supra, 156 Cal.App.4th at p. 423.)

The trial court’s clear preference was for the guardianship to go first. Its stated reasoning was it wished to address the domestic violence allegations against the children as part of the guardianship portion of the hearing. Any findings of abuse against the children would necessarily be bound up in its decision whether to grant Patricia guardianship, and it felt it needed to resolve the guardianship matter quickly so as to give the children stability. This was reasonable.

Patricia believes the trial court improperly subjected the domestic violence allegations to a higher standard of proof. She is incorrect, for reasons stated in our opinion in the guardianship appeal. Namely, a potential guardian must meet the detriment requirement imposed by section 3041 by clear and convincing evidence.[13] (§ 3041, subd. (b).) But “a lower level of proof is required for issuance of a protective order under the DVPA and the Elder Abuse Act – a preponderance of the evidence, rather than clear and convincing evidence.” (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.)

It would only make sense to issue a DVRO protecting both Patricia and her granddaughters if she had custody of them. “A petition can be brought by a parent as the natural guardian of a minor child, by a guardian ad litem appointed by the court, or perhaps in conjunction with the parent’s own claim, if the petitioning party were himself a protected person under section 6211.” (Riehl v. Hauck (2014) 224 Cal.App.4th 695, 701.) As Miranda’s mother, Patricia is a protected person under section 6211. (See § 6211, subd. (f).) But the purpose of a DVRO can only be fulfilled if it “provide[s] for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” (§ 6220.) If the trial court were to decide the children should return to their mother’s custody, it would be an absurdity to issue a DVRO protecting them from her. The custody issue had to be determined first.[14]

Because we believe the custody determination was preliminary to adjudication of the DVRO, we do not think the trial court erred in applying the clear and convincing evidence standard to Patricia’s allegations regarding domestic violence against her granddaughters. In order to get guardianship of them as a nonparent, Patricia had to show by clear and convincing evidence that it would be detrimental to the granddaughters to be with their mother. (§ 3041, subd. (b).) She should not be able to skirt such a requirement through the DVRO process.

Patricia insinuates the trial court deliberately refused to make DVRO findings as to the granddaughters in order to avoid invoking the rebuttable presumption under section 3044 which would have militated against awarding custody to Miranda.[15] Her logic is circular. Patricia had to win on her permanent guardianship petition in order to get a permanent DVRO. She could not use the DVRO to obtain custody. And even if she could, the statute provides the presumption would be rebuttable by a preponderance of the evidence.

Because we believe the trial court correctly denied guardianship, we also affirm its denial of a DVRO protecting the granddaughters from their mother.

DISPOSITION

The ruling declining to include Patricia’s granddaughters in her domestic violence restraining order is affirmed. Each party to bear her own costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

[1] We have filed a separate opinion affirming the trial court’s ruling in the related appeal. Given the intersection of the two cases, we have taken judicial notice of the record therein.

[2] Alex is not a party to the appeal and played no role in the proceedings before the trial court, except that the trial court noted he objected to Patricia’s guardianship of his children.

[3] The record indicates Patricia sought grandparent visitation, but she contends she sought custody of the children and was told she needed to file a guardianship action. We do not have the minute orders from the family court in our record, only a portion of the docket.

[4] We have not been made aware of the outcome of the matter in the criminal court.

[5] It is important for us to note here a prominent fact: out of many reports, such as these, to both the police and SSA about Miranda’s parenting conduct, no action was ever taken by authorities to detain the children or remove them from Miranda’s care.

[6] The reports clearly changed the judge’s view of the case. He commented: “there is enough information in there for me to understand a little bit more why Mom is so upset because they’re her kids.”

[7] Both parties requested the reports shortly after the March 4 hearing. However, we are unsure as to when they actually received them. Patricia contends she did not receive the SSA report until the first day of trial, but the transcript reflects she had read the report by then. In any event, she did not request additional time to prepare based on any late receipt of the reports.

[8] Ms. Walsh had only been appointed as guardian ad litem in the DVRO matter, and the trial judge did not wish to have her wait, inconveniencing her and incurring additional fees.

[9] On cross-examination by Miranda, Officer Quinzio admitted he found the older child, aged six at the time, unusually articulate in being able to describe her mother’s fist as closed.

[10] All further statutory references are to the Family Code unless otherwise indicated.

[11] We deny Patricia’s request for judicial notice of exhibit A to her motion to augment the record on appeal. This document appears to be a request for statement of decision which was rejected for electronic filing at the trial court. There is no indication the document was reviewed by the trial court and in any event, the trial court did issue a statement of decision.

[12] Patricia also attempts to relitigate the child abuse allegations, but we need not address those because we conclude Patricia needed to have custody of the children to seek a DVRO on their behalf.

[13] “Before making an order granting custody to a person other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.” (§ 3041, subd. (a).) Thus, to grant the guardianship petition, the trial court had to find it would be detrimental to keep the girls in Miranda’s custody and custody with Patricia was required for their best interests.

[14] This was why the trial court sought to clarify whether Patricia had or had not filed a separate DVRO application for the children. Because Patricia had included the girls in her DVRO application, it was even more critical for the trial court to determine custody first.

[15] Subdivision (a) of section 3044 states as follows: “Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, or against any person in subparagraph (C) of paragraph (1) of subdivision (b) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.” (§ 3044, subd. (a).)