APPEAL from an order of the Superior Court of San Diego County, Gonzalo Curiel, Judge. Affirmed. (Super. Ct. No. D442663).
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Enrique M. (Enrique) and Angelina V. (Angelina) dated from 1995 to 1997. In September 1997, after their relationship had ended, Angelina gave birth to their son, X. The parties share joint legal custody of X.
In February 2008, Enrique filed an order to show cause in which he requested that
X. be ordered to enroll in Marshall Middle School (Marshall) the following academic year, and that the court change X.'s last name from "V.-M." to "M.V."*fn2 Angelina opposed both requests. She requested that the court order that X. be enrolled in Woodland Park Middle School (Woodland Park) and that X.'s name remain X.V.-M. The trial court denied Enrique's requests.
On appeal, Enrique claims that the trial court erred in failing to apply the strict scrutiny standard in ruling on Enrique's request to order that X. attend Marshall.Enrique also claims that the trial court erred in excluding various hearsay statements made by X., which Enrique offered in support of his request that the court order that X. be enrolled in Marshall. Finally, Enrique claims that the trial court erred in denying his request to change X.'s last name. We affirm the trial court's order.*fn3
II. FACTUAL AND PROCEDURAL BACKGROUND*fn4
In March 1998, Enrique filed a complaint in which he sought to establish a parental relationship with X., and requested child custody and visitation. In June 1998, the trial court entered an order that provided that Enrique and Angelina would share joint legal custody of X., that X.'s primary residence would initially be with Angelina, and that Enrique's custody rights would be gradually increased over time until the parents shared joint physical custody. The order further stated that X.'s last name would be "V.[mother's last name]-M.[father's last name]."
In late 2001, a dispute arose between Enrique and Angelina over where X. would attend kindergarten the following year. In December 2001, the court ordered that X. be enrolled at Richland Elementary School for kindergarten. In a written order filed in February 2001, the trial court stated: "[I]t is appropriate to enroll the child in the district of the primary custodial parent. The court sees Mother in that role."
In March 2006, Enrique filed an order to show cause in which he sought, among other things, to enroll X. in Tierrasanta Elementary School. In October 2006, the court denied this request. In January 2008, this court affirmed the trial court's order, concluding that the court had not abused its discretion in denying Enrique's request to change X's school.
In February 2008, Enrique filed an order to show cause in which he requested that the court order that X. be enrolled in Marshall the following year, and that the court change X.'s last name from "V.-M." to "M.V." With respect to his request that the court order that X. be enrolled in Marshall the following year, Enrique stated:
"X. is in the last grade [fifth] offered at his current school. He will need to change schools next year. Marshall Middle School is located such that both Mom and I can share in driving and participating in X.'s academics. Mom drives by Marshall every day on her way to and from work. Marshall is one of the top middle schools in the county. X. wants to go to Marshall too."
Angelina opposed the requests and filed a responsive declaration. With respect to Enrique's request to enroll X. in Marshall, Angelina stated, "X. currently attends Richland Elementary School which filters into Woodland Park Middle School where X. would start the [sixth] grade in the fall of 2008." Angelina stated that Woodland Park has high test scores and that many of X.'s friends would be attending Woodland Park. Angelina explained that Woodland Park is located in the school district in which she lives.*fn5 Angelina also requested that the court impose sanctions in light of Enrique's alleged "ongoing campaign of harassment since March 1998."
Enrique filed a declaration in support of his requests. With respect to his request to enroll X. in Marshall, Enrique argued, among other contentions, that Marshall's location would allow both parents to be involved in X.'s academics, and that Marshall was academically superior to Woodland Park. Enrique also stated, "If this Court were to select Woodland Park it would place a severe and undue burden upon my ability to parent X." Enrique also stated:
"This Court is respectfully requested to take Judicial Notice under Evidence Code § 451[, subdivision] (a) that 'parenting one's child' is a protected fundamental right subject to strict scrutiny. This court is further respectfully requested to take Judicial Notice under Evidence Code § 451[, subdivision] (a) that 'participating in one's child's educational upbringing/academics' is part of 'parenting one's child.'"*fn6
In April 2008, the trial court held a hearing on Enrique's order to show cause and Angelina's request for sanctions. The trial court denied Enrique's requests, and denied Angelina's request for sanctions. The court ordered that X. would attend Woodland Park and that he would maintain the last name of V.-M.
With respect to the issue of where X. would attend middle school, the court noted the proximity of Woodland Park to Angelina's residence and the fact that Angelina is responsible for taking X. to school on seven of the 10 school days in a two-week period. The court noted that Enrique's proposal would entail placing X. in a school approximately 15 miles from the residence in which X. primarily resides. The court further stated that it had examined the various ratings of the schools that the parties had offered, and found that "Woodland [Park] appears to have good scores." The court observed that Angelina had resided in the same neighborhood for approximately eight and one-half years, which had allowed X. to attend a single school that feeds into Woodland Park. The court commented that some of X.'s current classmates would likely attend Woodland Park. The court also noted that Enrique had changed residences numerous times in the preceding years.
The court summarized its ruling by stating:
"So for all of these reasons, at this time the court finds that the parents are unable to agree on a school at this juncture. The present orders provide for joint legal custody, which provides for issues involving education to be made jointly by the parents. To the extent that the parents cannot... mutually agree on the school, then it's placed upon this court to decide between the two options offered to the court. Considering all... of the factors that the court has noted, the court believes in this instance Woodland [Park] would be the superior school. For that reason, the court will side with the mother in the selection of Woodland [Park] for the next school."
On May 6, Enrique filed a notice of intention to move for a new trial on several grounds, including "newly discovered evidence" and "error in law." On May 16, 2008, Enrique filed a combined declaration and memorandum in support of his motion for a new trial. On June 30, Enrique filed a supplemental declaration and memorandum.
On July 5, having declined to rule on Enrique's motion for new trial, the trial court denied the motion by operation of law. (Code of Civ. Proc., § 660.)
On July 8, Enrique filed an appeal from the trial court's April 22, 2008 order.
A. The Trial Court Did Not Err in Failing to Apply the Strict Scrutiny Standard in Ruling on Enrique's Request That the Court Order That X. Attend Marshall
Enrique claims that the trial court erred in failing to apply the strict scrutiny standard in considering his request that the court order that X. attend Marshall.*fn7 Enrique claims that the trial court was required to apply the strict scrutiny standard because the court's decision had the potential to burden Enrique's fundamental right to parent X. Whether the strict scrutiny standard applies in this case raises a question of law, which we review de novo. (See Enrique M., supra, 121 Cal.App.4th at p. 1378 [determining "the appropriate legal standard to apply in ruling on [Enrique's] requests raises a question of law, which we review de novo"].)
Neither the United States Supreme Court, nor any other court of which we are aware, has ever applied the strict scrutiny standard to a custody or custody related dispute between two parents of a minor child.*fn8 In Palmore v. Sidoti (1984) 466 U.S. 429 (Palmore), the United States Supreme Court concluded that a state trial court had violated the equal protection clause by awarding a father custody of a child after the mother married an African-American. The trial court based its award on the rationale that the child would likely suffer social stigma from the interracial marriage of his mother. (Id. at p. 431.) In concluding that this order violated the equal protection clause, the Palmore court endorsed the best interest standard for adjudicating custody disputes between parents. (Id. at p. 432 ["The [trial] court correctly stated that the child's welfare was the controlling factor"].) The Palmore court further explained:
"The State, of course, has a duty of the highest order to protect the interests of minor children, particularly those of tender years. In common with most states, Florida law mandates that custody determinations be made in the best interests of the children involved. [Citation.] The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause." (Id. at p. 433.)
The Palmore court was clear that the court was reversing the trial court's order because of "the Constitution's commitment to eradicating discrimination based on race." (Palmore, supra, 466 U.S. at p. 432.)
More recently, as Enrique notes, a plurality of the United States Supreme Court has stated, "The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." (Troxel v. Granville (2000) 530 U.S. 57, 66 (plur. opn. of O'Connor J.) (Troxel).) In Troxel, supra, 530 U.S. at pages 66-67, the United States Supreme Court concluded that a Washington nonparental visitation statute, applied so as to require visitation between two minor children and their paternal grandparents, unconstitutionally infringed on the petitioner mother's fundamental right to make decisions concerning the care, custody, and control of her children.
Ordinarily, governmental action that "substantially interferes with the enjoyment of a fundamental right is subject to strict scrutiny [citation], i.e., it must be set aside or limited unless it serves a compelling purpose and is necessary to the accomplishment of that purpose." (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1315.) However, the Troxel plurality did not expressly state whether it was subjecting the statute at issue in that case to the strict scrutiny standard. (See also Troxel, supra, 530 U.S. at p. 80 (conc. opn. of Thomas, J.) [noting that the opinions of the plurality, Justice Kennedy, and Justice Souter all recognize that "parents have a fundamental constitutional right to rear ...