Filed 4/28/21 Guardianship of K.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Petitioner and Appellant.

No appearance for Objector and Respondent.

INTRODUCTION

This appeal, and the related case of Kennedy v. Miranda S., appeal pending, G058144, require us to weigh in on a new and sad chapter in what appears to be an old family struggle.[1] Patricia Kennedy appeals from a trial court ruling denying her petition for guardianship of her two minor granddaughters, both of whose initials are K.S. Patricia claims her daughter, Miranda S., the girls’ mother, has been neglecting and abusing them.

Our last encounter with Patricia was when she sought guardianship of Miranda and her sister, both of whom were teenagers at the time.[2] Patricia was unsuccessful, a result we affirmed in an unpublished opinion. (Guardianship of J.A. (May 18, 2011, G042587) [nonpub. opn.].) For both Patricia and Miranda, it seems, the wounds sustained in such skirmishes over the years have metastasized rather than healed, in different ways for each. Having lost the battle for custody of her child, Patricia now wages a custody battle against her child. Miranda bears scars – still visible today – from being the rope in a protracted parental tug of war, and she does not want her children to go through the same experience. The trial court shared these concerns, and we affirm its ruling.

FACTS

The litigation history of this family is too lengthy and complex to recount, but one thing is crystal clear from our review of the record: Miranda has spent a considerable portion of her life in the push-and-pull of the family court system. It started when her biological parents, Patricia and Mitchell, divorced in or around 1997 when she was very young. It continued through her teenage years, when Patricia fought Mitchell’s second wife, stepmother Jennica, for custody of Miranda and her sister after Mitchell’s death. Then, as a very young adult, Miranda filed a petition against Jennica for visitation with her half-brothers from Jennica and Mitchell’s marriage. We need not elaborate on the details of these past disputes but it is impossible to ignore their shadow looming over the facts of the present one.

Miranda became a mother herself at 21. Her daughters, born in 2012 and 2016, were the product of her marriage to their father, Alex S, which ultimately ended in divorce.[3] Miranda, Alex, and the girls 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. It appears their departure caused some turmoil and Patricia sought grandparent visitation. However, she was told she needed to file a guardianship action for such relief.[4]

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’s 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 his and Miranda’s 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, she said, 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 abused Miranda and the girls – including suffocating, manhandling, and hitting them. Yet, Miranda was unable to prioritize her daughters’ needs because of the addiction 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 she 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 to retaliate against Miranda for what occurred in previous custody battles. Despite this, the trial court determined there was good reason for the temporary guardianship to continue and set a new hearing for March 4, 2019.[5]

Incident Leading to Domestic Violence Restraining Order

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 with the children, 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.[6]

About one month after this incident, Patricia filed an application for a domestic violence restraining order (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.[7]

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. It was finally set for a full hearing on July 9, 2019.

Both sets of investigators filed their confidential reports, and at the 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.[8] The hearing was continued so the parties could obtain and read the reports.[9] 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.[10] 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 her 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.[11] 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 issued a permanent DVRO against Miranda protecting 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.

Trial in the Guardianship Matter

The testimony of Officer Huynh, Officer Quinzio, Ms. Golden, Miranda, Patricia, her husband and Irene was incorporated for purposes of the guardianship matter. However, Miranda testified once more on a broader range of topics.

She had lived in four residences in the time since she had left Patricia’s home in 2017. She gave her grandparents’ address as her permanent residence, but admitted she lived elsewhere during the work week because she worked seven hours away, in a place she refused to disclose to Patricia because she feared “stalking” and “harassment.”[12] She was making a relatively modest salary, and planned to move the girls out of state if Patricia’s guardianship petition was denied.

Miranda admitted the older child had been to two different schools during the 2017-2018 school year because of her divorce from Alex but said the child would have been able to attend the same school for the following year had Patricia not obtained custody. She denied the child had many absences, but she had been late to school half the days because Miranda lacked a vehicle for a time.

A former friend of Miranda’s testified she used to visit the apartment where Miranda and Alex lived together just after they moved out of Patricia’s home. She said Will Jordan moved in at some point because he got evicted from his apartment in the same complex, and he was supplying Miranda methamphetamine and marijuana and dealing drugs out of the couple’s apartment. The former friend said Miranda told her she would ingest the methamphetamine in order to lose weight. Miranda did not keep the home or the girls clean and she let the girls go to the park unsupervised. She would rudely rebuff the girls when they sought affection, and had a bad temper – cursing at them and threatening to give them up.

Patricia’s testimony focused on what she believed were concerning changes in Miranda suggesting drug use, such as weight loss and marks on her skin. She said she had helped to get Miranda out of the situation with Will Jordan in late 2017 and into her own apartment, but Miranda just moved right back in with Will. Patricia described unsanitary sleeping conditions for the children. She also claimed there was physical violence between Miranda and Alex, and potentially abuse by Will Jordan against Miranda and the children.

Miranda once again vehemently denied any drug use, aside from marijuana. However, she admitted she and Alex could get into physical confrontations when they argued because they were incompatible. She said the former friend who had testified was more her husband’s friend than hers, and she had very little in the way of a relationship with her during the events supposedly witnessed. She admitted she had lived with Will Jordan, but not after sometime in early 2019. She had not seen him in weeks and believed he had moved out of state. She claimed Will was her friend and denied he had abused the girls.

At the close of evidence, 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 section 3041.5.[13]

Approximately two weeks later, the parties heard the court’s ruling, which was a statement of decision issued from the bench and later memorialized in a minute order.[14] Miranda’s urine test was in, and while the trial court could not say she had not ever used drugs, it had no additional evidence to show she was currently using them. Patricia’s petition was denied because the trial court felt she could not meet the clear and convincing standard required under Family Code[15] 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 failure 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 it based on Patricia’s submissions alone.

DISCUSSION

From the briefing, we discern two major issues requiring our discussion. First, Patricia argues the trial court manipulated the law and applied incorrect burdens of proof in considering the guardianship and DVRO matters in order to deny her custody of her granddaughters. This issue requires us to analyze the interplay between the applicable statutes in both matters, as well as the approach the trial court took in making its findings. Second, Patricia contends the trial court should have given her the benefit of the de facto parenthood presumption under section 3041, subdivisions (c) and (d).

I. Standard of Review

“The resolution of a legal dispute involves three steps: (1) establishing the facts; (2) determining the applicable law; and (3) applying the law to the facts. Guardianship of L.V. (2006) 136 Cal.App.4th 481, 487.)” (Guardianship of Vaughan (2012) 207 Cal.App.4th 1055, 1059 (Vaughan).) “Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test. Questions of law relate to the selection of a rule; their resolution is reviewed independently. Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied.” (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.)

Where the appellant in a guardianship matter is challenging the trial court’s interpretation of statutory presumptions, it “raises an argument of law regarding the statute’s interpretation.” (Vaughan, supra, 207 Cal.App.4th at p. 1067.) We review those interpretations independently. But the trial court’s determinations regarding detriment and best interests are exercises of the court’s discretion. (Ibid.) As are the trial court’s rulings regarding the order in which trial should proceed. We will not disturb those determinations unless there was an abuse of said discretion. (San Francisco Unified School Dist. ex rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 1212, 1227 [where court exercises its inherent powers to control proceedings, orders are reviewed for abuse of discretion].) We nonetheless note that application of the incorrect legal standard constitutes such an abuse. (See Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 662 (Celia S.).)

II. The Statutory Scheme for Guardianship of a Minor

A relative may apply for guardianship of a minor. (Prob. Code, § 1510, subd. (a).) Indeed, “[a] guardianship petition under the Probate Code is the only judicial means for a nonparent to obtain custody when the parents have not themselves initiated a custody proceeding.” (Erika K. v. Brett D. (2008) 161 Cal.App.4th 1259, 1269.) The relative’s guardianship petition may be granted “if it appears necessary or convenient[.]” (Prob. Code, § 1514, subd. (a).) In determining a guardianship petition, “the court is governed by Chapter 1 (commencing with Section 3020) and Chapter 2 (commencing with Section 3040) of Part 2 of Division 8 of the Family Code, relating to custody of a minor.” (Prob. Code, § 1514, subd. (b)(1).)

Chapter 1 of Part 2 of Division 8 of the Family Code contains general provisions, and Chapter 2 contains matters for the court’s consideration in granting custody. In section 3020, subdivision (a), the Legislature has declared it “the public policy of this state to ensure that the health, safety, and welfare of children shall be the court’s primary concern” when making a best-interests determination for purposes of custody. Subdivision (a) provides “that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.”

In making a best-interests determination, the trial court must consider a history of abuse by a parent or person seeking custody against the child, the other parent, or a “parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.” (§ 3011, subd. (a)(2)(A)(iii).) However, it may require independent corroboration of abuse allegations as a prerequisite to considering them. (Id. at subd. (a)(2)(B).) The court must also consider the health, safety, and welfare of the child and any “habitual or continual illegal use of controlled substances[.]” (Id. at subd. (a)(1) & (4).) Where there is evidence of such drug use, the court may “order the least intrusive method of testing” for same. (§ 3041.5.)

In conjunction with the best-interests framework of sections 3011 and 3020, the trial court is to follow the “order of preference” provided in section 3040 in granting custody. (§ 3040, subd. (a).) First in line are the parents, or either parent. (Id. at subd. (a)(1).) If neither parent is to get custody, next in line is “the person or persons in whose home the child has been living in a wholesome and stable environment.” (Id. at subd. (a)(2).) After that, the court may give custody to someone it deems “to be suitable and able to provide adequate and proper care and guidance for the child.” (Id. at subd. (a)(3).) This is a vestige of the policy in California preceding passage of section 3041 “that in either guardianship proceedings or custody proceedings in a divorce action, the parents of a legitimate child have preference over a nonparent and the custody shall not be given to a nonparent unless the parent is found unfit.”[16] (See Guardianship of Smith (1954) 42 Cal.2d 91, 92.)

Thus, where a relative is seeking custody of a minor over the parent’s objection – in this case, both parents’ objection – the framework of section 3041 comes into play. (See Adoption of Daniele G. (2001) 87 Cal.App.4th 1392, 1408 [adoptive parents’ guardianship petition, opposed by natural father, should have been adjudicated under section 3041].) Family Code section 3041 prohibits a court from granting custody of a minor to a person who is not the child’s parent and over the parent’s objection without first finding that granting custody to the parent would be detrimental to the child and granting custody to the nonparent is required to serve the child’s best interest. (§ 3041, subd. (a).) Detriment to the child must be supported by clear and convincing evidence. (§ 3041, subd. (b).)

“However, . . . section 3041 provides an alternative way to establish detriment to the child. Detriment to the child also includes the harm of removing the child from his ‘stable placement’ with a person who has assumed, on a day-to-day basis, the role of the child’s parent and has fulfilled the child’s physical and psychological needs for care and affection, and has done so for a substantial period of time.

(. . . § 3041, subd. (c).) If the court finds by a preponderance of the evidence that the person to whom custody may be given is such a person, that finding establishes a rebuttable presumption that custody of the child with that nonparent is in the child’s best interest and that parental custody would be detrimental to the child. (. . . § 3041, subd. (d).)” (Vaughan, supra, 207 Cal.App.4th at p. 1059.) This is the presumption of de facto parenthood. (See H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 1137.)

The other provision significant to our inquiry is section 3044, the rebuttable presumption against perpetrators of domestic violence – what we shall call the domestic violence presumption. This presumption arises when the court has made a finding that “a party seeking custody” of the children has “perpetrated domestic violence within the previous five years” against the other party seeking custody, against the children themselves, or against persons described in section 3011, subdivision (a)(2)(A)(iii), to which we have earlier referred. (§ 3044, subd. (a).)[17] Should the trial court so find, it must make certain findings on the record in order for the presumption to be overcome. (Id. at subds. (b) & (f)(1).)

III. Interplay of DVRO and Guardianship Matters

There are two sub-issues to be addressed here. First is Patricia’s challenge to the order in which the DVRO and guardianship cases were decided. Second is her challenge to the trial court’s failure to apply the domestic violence presumption. In accordance with our discussion above, the first issue is reviewed for abuse of discretion and the second is reviewed independently.

A. Order of Proceedings

Patricia believes the trial court erred by refusing to decide the DVRO case in its entirety prior to deciding the guardianship matter.

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.’ [Citation.]” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 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.

We can discern another good reason for the guardianship to be determined first. As we observe in our opinion in the DVRO matter, Patricia would need to have custody of her granddaughters to get a permanent DVRO protecting them. It would not make sense for a DVRO to remain in place protecting the girls from Miranda if the court was going to find they should return to her custody.

The trial court’s intended order of issues changed only because it learned Ms. Walsh was appointed guardian ad litem in the DVRO matter only. It did not want her waiting around so it acquiesced to Patricia and took evidence in the DVRO first. But at the close of the DVRO evidence, the trial court chose to make a DVRO finding only as to Patricia, and deferred its ruling as to the granddaughters. We find this approach was not an abuse of discretion. To the contrary, it reflected a reasonable balancing of the various considerations.

B. Domestic Violence Presumption

Patricia insinuates the trial court deliberately refused to make DVRO findings as to the granddaughters so it could avoid invoking the domestic violence presumption, which would have hurt Miranda’s case. And because the trial court failed to invoke the presumption, she was wrongly subjected to the clear and convincing standard under section 3041, subdivision (b) rather than the preponderance of the evidence standard used in DVRO matters.

While we agree the trial court failed to consider whether it ought to apply the domestic violence presumption, we ultimately find the error was harmless because the trial court found the evidence did not support a finding of domestic violence against the granddaughters by the proper standard of proof.

First, the error. The domestic violence presumption “is mandatory and the trial court has no discretion in deciding whether to apply it: ‘[T]he court must apply the presumption in any situation in which a finding of domestic violence has been made. A court may not “‘call . . . into play’ the presumption contained in section 3044 only when the court believes it is appropriate.”’ [Citations.]” (Celia H., supra, 3 Cal.App.5th at p. 661.)

“In an evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence, the court shall make a determination as to whether this section applies prior to issuing a custody order, unless the court finds that a continuance is necessary to determine whether this section applies

. . . .” (§ 3044, subd. (g).) A person “perpetrates domestic violence” if she “intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in behavior involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.” (§ 3044, subd. (c).) Because this type of conduct had been alleged by Patricia, the trial court was required to determine whether section 3044 applied before making its ruling.

But an error is not enough for reversal. Even where a trial court has failed to comply with a mandatory statutory duty, it “may be harmless error, so long as the record affirmatively reflects that the protections intended to be afforded to private parties through the exercise of that duty has been otherwise provided.” (Guardianship of Christian G. (2011) 195 Cal.App.4th 581, 608 (Christian G.).) Here, the trial court may not explicitly have held a hearing on whether the presumption was applicable prior to issuing its final ruling, but it allowed Patricia to present her evidence of abuse and domestic violence prior to hearing the evidence in the guardianship case. Effectively, it allowed Patricia the opportunity to present evidence sufficient for it to make a domestic violence finding if it so chose.[18] It made such a finding as to Patricia, but not as to the granddaughters. Was the presumption triggered by this? We answer the question in the negative for the reasons that follow.

1. Alleged Abuse of Granddaughters

If the trial court wished to invoke the domestic violence presumption with respect to the girls, it needed to make a “finding” that Miranda engaged in domestic violence against them. A “finding” is “the result of a judicial or quasi-judicial examination or inquiry . . . .” (Webster’s 3d New Internat. Dict. (1981) p. 852.) Section 3044 gives two examples, non-exhaustive, of circumstances in which the finding requirement is met. (Id. at subd. (d).) The first would be if Miranda had been convicted of a crime constituting abuse or domestic violence. (Id. at subd. (d)(1).) At the time of trial, she had not. The second would be if any other court had made such a finding. (Id. at subd. (d)(2).) We have no evidence any other court ever did.

The trial court itself did not, although Patricia attempts to construe some of its comments on the record as “findings” regarding abuse against the granddaughters. For instance, in discussing the detriment prong of the analysis under section 3041, the judge commented “while I believe that maybe the allegations are more likely true than not, that’s not enough.” The court was right: that’s not enough. Such comments are insufficient to establish a finding. (See Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268.) The court’s statement of decision indicated it felt Patricia had not met her burden. And we will not magnify the trial court’s comment into something it was not.

Patricia believes the trial court should not have required her to meet a clear and convincing standard of evidence regarding the abuse because the standard for issuance of a DVRO is preponderance of the evidence. We think this argument is simply an end run around section 3041’s standard.

Guardianship of Stephen G. (1995) 40 Cal.App.4th 1418 (Stephen G.), a case predating the current version of section 3041, provides some useful insight on the issue. In Stephen G., the First District Court of Appeal held the clear and convincing standard should be used when applying the statute, stating: “If . . . section 3041 were construed to permit an indefinite suspension of parental custody on a mere preponderance of the evidence, it would raise grave due process concerns.” (Id. at p. 1425, citing Santosky v. Kramer (1982) 455 U.S. 745, 747-748.) The court observed probate guardianship proceedings do not contain the same safeguards for parental rights as dependency proceedings, and, consequently, reunification with the parents becomes more difficult the longer a child is in the guardian’s custody. (Stephen G., supra, 40 Cal.App.4th at pp. 1426-1430.) As a result, the Stephen G. court ruled a higher standard of proof must be met in order to grant a guardianship petition. The Legislature clearly agreed with this notion, as it added subdivision (b) to section 3041 – codifying the clear and convincing evidence standard – seven years later.

There is no mention of the domestic violence presumption in section 3041 or vice versa. So the most reasonable reconciliation of the two statutes in a situation like this – in which a nonparent seeks guardianship based on allegations of domestic abuse – is to require the petitioner to meet her standard of proof of domestic violence by clear and convincing evidence.

Our conclusion is buttressed by the fact that Patricia’s allegations of abuse against the granddaughters were investigated by SSA, and its report reflected concerns about Patricia’s motivations and conduct, not Miranda’s. This was significant evidence undercutting Patricia’s claims. To the extent Patricia disputes or questions the accuracy of these reports, she did not call the investigators to the stand to be examined. (See Prob. Code, §1513, subd. (c).) And the trial court did not find her witnesses credible on the abuse allegations. At best, the trial court suspected Miranda’s parenting skills were wanting, which alone is not grounds for a domestic violence or detriment finding.

In David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B.), this court explained that “[w]hat SSA was required to establish [at the review hearings] was that releasing [the child] to [the parent’s] custody would ‘create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.’ (Welf. & Inst.Code, § 366.22, subd. (a).) That standard, while vaguely worded to be sure, must be construed as a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.” (Id. at p. 789.)

In David B., this court reversed the order terminating reunification services, noting that while the young father was not perfect, he could not be denied custody on the basis of such flaws as “the fact that [he] consulted frequently with both the foster mother and the social worker during the times he was caring for [the child], thus demonstrating his own inability to deal with the everyday issues of parenting.” (David B., supra, 123 Cal.App.4th at p. 790.) As this court pointed out, “the example given by the court (i.e., ‘[t]he child doesn’t like peas. So you give the child carrots. You don’t need to call the social worker for the foster parents to know that. That’s just something a parent knows’) indicates the court was focused on details, rather than the essential question of whether [the child’s] safety, protection, physical or emotional well-being would be placed at substantial risk in David’s care.” (Ibid.)

Moreover, as we noted in David B., a parent cannot be denied custody on the basis that he or she is less than ideal, or – significantly – less ideal than an alternative caregiver would be: “The parents who come through the dependency system are more in need of help than most. If we are lucky, they are parents who can learn to overcome the problems which landed their children in the system, and who can demonstrate the dedication and ability to provide for their children’s needs in an appropriate manner. They will not turn into superstars, and they will not win the lottery and move into a beachfront condo two blocks from a perfect school.” (David B., supra, 123 Cal.App.4th at p. 789.)

Of course, this court acknowledged “[t]his is a hard fact to accept. We are dealing, after all, with children, and the dedicated people who work so hard to help these families are understandably desirous of providing those children the best possible circumstances in which to grow up. But there are times when we have to take a step back and make sure that we are not losing sight of our mandate. We are looking for passing grades here, not straight A’s.” (David B., supra, 123 Cal.App.4th at p. 790.)

The trial court may not have given Miranda straight A’s in her parenting, but that was not enough to take her children from her.

2. Miranda’s Assault on Patricia

Patricia is correct the trial court made a finding that Miranda assaulted her. And she is also correct such an assault against her constituted domestic violence (which is why the trial court granted the DVRO protecting her). (See § 6211, subd. (f).) But she is wrong in asserting that such a finding required the trial court to grant Patricia’s guardianship petition.

The domestic violence presumption would have established detriment, but it would not necessarily have established that giving Patricia guardianship was “required to serve” the girls’ best interest. (§ 3041, subd. (a.) “The section 3044 presumption . . . does not change the best interest test, nor supplant other Family Code provisions governing custody proceedings.” (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1055.) And based on the trial court’s perceptions, stated on the record, we very much doubt the trial court would have deemed guardianship with Patricia in the girls’ best interests, given the badly corroded relationship between Patricia and Miranda.[19]

In any event, we have significant concerns regarding the timing of Patricia’s DVRO application. The petition for guardianship was filed first and was based on Miranda and Alex’s unfitness to parent the girls and their alleged neglect of the girls’ needs. Patricia did not file for the DVRO at the same time she petitioned for guardianship. She only filed for the DVRO after the altercation with Miranda; an incident, we note, for which she had some culpability.[20]

Indeed, we believe it would undermine important public policy principles to allow Patricia to meet her burden on the detriment prong under section 3041 using this incident. The Legislature’s specification of a clear and convincing evidence standard in section 3041, in our view, is an implicit recognition that the fundamental right to parent one’s own child is one not easily superseded by the concerns, however earnest, of a nonparent. “A parent’s interest in maintaining a parent-child relationship is an extremely ‘important interest’ (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27), and termination of that right by the state must be viewed as a drastic remedy ‘to be applied only in extreme cases.’ (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.) [¶] Although a guardianship does not technically terminate a parent’s rights, it does suspend them indefinitely, and it often leads to practical or legal termination of the parent-child relationship, or both. ([] Stephen G.[, supra,] 40 Cal.App.4th [at pp.] 1426–1427 [‘As a practical matter . . . many guardianship orders will forever deprive the parent of a parental role with respect to the affected child.’].)” (Christian G., supra, 195 Cal.App.4th at p. 598.) With such weighty interests at stake, it would be unfair to allow a nonparent to gain an advantage in a guardianship proceeding based on an incident she herself instigated.

IV. De Facto Parenthood Presumption

Patricia thinks the trial court should also have applied the de facto parenthood presumption because she had provided her granddaughters with a safe, clean, loving, and nurturing home between September 2018 and the trial in July 2019. We agree the presumption was applicable, but, again, the trial court’s failure to explicitly apply it was not prejudicial. The trial court clearly knew the children were in a stable placement and said as much on the record.[21] But that did not end its inquiry.

The trial court’s main concern, expressed repeatedly, was how the toxicity of Patricia’s and Miranda’s relationship would affect the children. More than one judicial officer below saw clearly what we see in reviewing the record. Patricia’s connection with her daughter was so riven and damaged that committing the granddaughters to her care as their guardian would not be conducive to their mental and emotional well-being. Therefore, we believe there was sufficient evidence to overcome any presumption Patricia may have enjoyed under section 3041, subdivision (d). Giving her guardianship just was not in the children’s best interests.^[22]

The trial court spoke earnestly to its concerns in this regard: “to place permanent guardianship with grandmother, is going to result in the children being in an extremely stressful environment for the rest of their days. [¶] That, because of the acrimonious relationship between mother and daughter, without regard to making determination of who’s at fault or more at fault, it’s there, and it doesn’t appear to be going away anytime soon. [¶] . . . [¶] So, the big concern – and I’d like the parties to think about – the big concern about what the Court is going to do is, how can we make it – is there a way in which these children can be allowed to have a safe, loving relationship with both the mother and grandmother without being placed in an environment of great stress for the children? [¶] And that’s the difficult question, at the end of the day, we have to ask.”[23]

Essentially, the trial court felt, despite her best intentions, Patricia was unable to meet her granddaughters’ long-term needs because of her relationship, or lack thereof, with their mother. The concern was valid. Given the lack of clear and convincing evidence of abuse or neglect, the court’s attention was focused on the antipathy between them – which threatened to create an endless stream of future legal battles. And the only real victims in these battles would be the children.

A sacred obligation of the court system is to protect the interests and welfare of every child coming within its purview. In this vein, courts must be mindful of the trauma resulting every time a child interacts with the justice system and “endeavor to mitigate the harm already done and do no further harm.” (Jeske & Klas, Adverse Childhood Experiences: Implications for Family Law Practice and the Family Court System (2016) 50 Family L.Q. 123.) This case illustrates vividly the reason why. In adult Miranda – the young, troubled mother – we cannot help but see reflected the child who was Miranda. We surmise the trial court here was trying to save these children – and we say this with all due respect to both Patricia and Miranda – from a similar fate.

In our view, Patricia’s tendency to pass the buck on this issue lends support to the trial court’s conclusion. She says Miranda cannot be a good mother because she admits to having difficulty being “lovey-dovey” or effusive in showing love to her daughters. Patricia criticized Miranda in court for not trusting people, an issue impeding the parties’ ability to seek family counseling to improve their interactions surrounding visitation. In her brief in the DVRO matter, she even concedes Miranda’s experiences as a child “create[ed] the foundation for current emotional issues.” She makes such accusations without an ounce of irony – as if she is a distant stranger; forgetting Miranda is her daughter, a daughter who feels emotionally and socially stunted because she was “raised . . . in a courtroom.” Patricia’s invocation of the very incapacities she and other parental figures in Miranda’s life helped to create seems problematic.

We have no doubt Patricia loves her granddaughters. And it is not our place to question her attachment to Miranda, her own child. But there can come a point at which a personal quest, even one born out of love, can itself become destructive of the goal. Or, as a relatively obscure protagonist from early twentieth century literature might have put it, endless seeking can prevent one from finding.[24] Our hope is that Patricia and Miranda can ameliorate their relationship in time – if for no others’ sake but the two little girls whose outlook could well depend on it.

DISPOSITION

The ruling denying the guardianship petition is affirmed. Each party to bear her own costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

[1] Because the facts of the two matters are very much intertwined, we take judicial notice of the record and briefing in the related appeal.

[2] The ultimate order in the case affected only Miranda’s sister, as Miranda had reached the age of majority by the time the appeal was decided.

[3] 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.

[4] 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.

[5] Our record contains a transcript of only part of the proceedings occurring on October 15, 2018 so we do not know the basis for the court’s decision that day.

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

[7] We note here an important fact: out of many reports, such as these, to both the police and SSA about Miranda’s parenting conduct, the record indicates no action was ever taken by authorities to detain the children or remove them from Miranda’s care.

[8] 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.”

[9] 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.

[10] 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.

[11] 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.

[12] Miranda claimed to have taken out numerous restraining orders against Patricia over the years, and as late as February 2018.

[13] Patricia contends a hair follicle test should have been ordered instead because such tests are more accurate than urine tests, but the trial court correctly advised her it could only order a urine test under Family Code section 3041.5. (See Deborah M. v. Superior Court (2005) 128 Cal.App.4th 1181, 1192-1193.) We note the Substance Abuse and Mental Health Services Administration of the United States Department of Health & Human Services last year proposed technical and scientific guidelines for including hair specimens in the Mandatory Guidelines for Federal Workplace Drug Testing Programs, which inform what drug tests are permissible under section 3041.5. (See, § 3041.5; see also 85 Fed. Reg. 56108 (Sep. 10, 2020).) But hair specimens have yet to be added to the suite of permissible specimens under the federal guidelines.

[14] We deny judicial notice of Patricia’s request for statement of decision attached as Exhibit A to her motion to augment the record in this appeal. The submission indicates the document was rejected for electronic filing at the trial court, and in any event, the trial court did issue a statement of decision.

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

[16] A relative no longer needs to show the parent to be “unfit” in order to successfully petition for guardianship. (See § 3041, subd. (c).) But she needs to meet the other requirements under section 3041.

[17] Section 3044, subdivision (a) 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.”

[18] We find it notable Patricia never requested the trial court to invoke the domestic violence presumption. “‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” [Citation.]’ (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1, italics added by Doers; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.)” (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.) While Patricia did seek to have the DVRO heard prior to the guardianship and took issue with the trial court’s decision to decide the DVRO as to the granddaughters after the guardianship, she never asked the trial court to invoke the presumption under section 3044. She did not ask for a hearing to determine if the presumption applied. She did not object to the trial court’s ruling from the bench omitting discussion of section 3044. We see no objection to the trial court’s statement of decision in the record. Nor do we consider Patricia in need of lenity as a self-represented litigant (see Christian G., supra, 195 Cal.App.4th at p. 595). She is not without means and, in our view, has more familiarity with the legal system – even at the appellate level – than most self-represented litigants. She was more than capable of raising this issue in a timely fashion.

[19] After giving its ruling on the record, the trial court asked the parties how they would like to do the exchange of custody. Patricia wanted to gather the girls’ things and do it later at her home. Miranda wanted to take the girls from the courthouse itself. After hearing more back-and-forth words between the two, the trial court stated: “The Court’s going to order that the children be delivered to mother here at the courthouse because I’m just afraid there’s going to be a confrontation.”

[20] When cross-examined by Miranda, Officer Huynh agreed the incident would likely not have occurred had Patricia obeyed the police department’s instructions to wait in her car for them to arrive.

[21] After all of the evidence had been presented, the trial court said this to Patricia:

“THE COURT: I accept all the stuff you say, in that regard. The children are doing better in school. They are doing good. You’re taking good care of them. [¶] They’re being loved and nurtured and cared for in your home; that’s not the issue. That’s not a question. It’s an issue, but I don’t doubt that that’s the truth.”

[22] Patricia believes the trial court should have at least required Miranda to allow visitation with the granddaughters once the proceedings were completed. After the ruling issued, Patricia asked about being able to see the girls from time to time, to which the trial court responded: “Well, that’s – that’s where you were in court on grandparent visitation.” Patricia denied they had been in court on the issue, but the court terminated proceedings without fully addressing the issue. We cannot say this was reversible error because grandparent visitation is governed by a different section of the code than this probate guardianship proceeding. (See §§ 3100-3105.) Because Patricia was not granted legal guardianship, she is not entitled to visitation as a former legal guardian under section 3105. Patricia was only appointed as a temporary guardian pursuant to Probate Code section 2250, and there is no statutory provision for visitation when such a relationship is terminated. (See Prob. Code, § 2257.)

[23] Because his paramount concern was the current mother-daughter relationship, we do not believe it was an abuse of discretion for the trial judge to impose a two-year evidentiary limit in the guardianship case.

[24] Hesse, Siddhartha (1922) p. 144.