APPEAL from the Superior Court of Riverside County. J. Michael McCoy, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) (Super.Ct.No. IND098692)
The opinion of the court was delivered by: Richli J.
CERTIFIED FOR PUBLICATION
Like the landmark case of Troxel v. Granville (2000) 530 U.S. 57 [120 S.Ct. 2054, 147 L.Ed.2d 49] (Troxel), this case involves a grandparent, whose adult child has died, seeking visitation with that child's minor children over the objection of their surviving parent.
Troxel commands the courts to presume that the surviving parent's objection to grandparent visitation is in the best interest of the children. However, this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent. Here, the trial court found that the surviving parent's claimed reasons for objecting to visitation were not reasonable and not credible; in essence, as he practically admitted on the stand, he objected to visitation mainly to spite the grandparent. Moreover, he admitted that grandparent visitation would be in the best interest of the children. Thus, the presumption that he was acting in the best interest of his children was overcome, and the trial court constitutionally could and did grant the grandparent's visitation petition.
A. The Scope of the Record.
Before summarizing the facts, we must explain what sources of facts we are (and are not) entitled to consider.
Several exhibits were mentioned and discussed during trial, but only two of them were actually admitted. Moreover, the superior court clerk's office no longer has any of the exhibits; thus, it has not been able to include them in the clerk's transcript or to transmit them to us. The appellant has not moved to augment the record. (See Cal. Rules of Court, rule 8.155.) We therefore cannot consider any of the exhibits.
The trial court did take judicial notice of the files in the related divorce and guardianship cases. The appellant has provided us, however, with only a select few of these documents; therefore, we can consider only these. (Evid. Code, § 453, subd. (b).) Moreover, we can take judicial notice of the existence and legal effect of these documents, but we cannot take judicial notice that any statements in them are true. (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364-365.)
Finally, although the appellant has provided us with reporter's transcripts from the guardianship case, these would not have been in the court files when the trial court took judicial notice; they were prepared later, at his request, for this appeal. Thus, we cannot consider them. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court"].)
The facts, as shown by the testimony at trial and the matters of which we may take judicial notice, were as follows.
B. The Facts as Shown by the Record.
Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen's mother, Shannon Hoag (the grandmother), at her apartment in La Habra. In 2006, their first daughter was born. Sometime in 2007, they separated. The father went to live in Desert Hot Springs; the grandmother, the mother, and the daughter all remained in La Habra. In April 2008, however, they reconciled. Thus, the mother and the daughter moved into the father's apartment in Desert Hot Springs; the grandmother moved in along with them. Later in 2008, the couple's second daughter was born.
In sum, then, the grandmother lived with both of the children from the time they were born. She helped to care for them. She testified that she was "like a third parent . . . ."
On February 25, 2009, the mother filed for divorce. According to the grandmother, the mother moved out and went to live with her oldest brother (the uncle), accompanied by the children and the grandmother. According to the father, however, the mother did not move out; she merely went to the uncle's house for a weekend visit.
On March 29, 2009, during this stay at the uncle's house, the mother died suddenly as a result of previously undiagnosed epilepsy. In the immediate aftermath of her death, the children remained with the grandmother, at the uncle's house. The father visited them every couple of days.
On May 3 or 4, 2009, the grandmother told the father that she was going to file a petition for guardianship of the children. He responded by demanding that she return the children to him. She testified that he also told her that "it was over for [her] as far as any contact was concerned . . . ."
On May 5, 2009, the grandmother did, in fact, file a guardianship petition. In it, she alleged that the father was "unable to care or provide for" the children because (1) "[h]e had an accident that left him temporarily disable[d] from the waist down" and (2) he was an undocumented alien subject to deportation. It was true that in February 2009 the father had been in an accident; as a result, he was confined to a wheelchair for about seven months. It was also true that he was in the United States illegally. However, he had entered the country legally, and he had applied for permanent residency. The mother thwarted his application by refusing to appear at a hearing. At the time of trial, he was still in the process of obtaining permanent residency.
Because the grandmother was alleging that the father was unfit, Child Protective Services was required to carry out an investigation, and it did. (See Prob. Code, § 1513, subd. (c).) However, it found "no concern."
According to the grandmother, the father never offered to let her have any visitation that was not court-ordered. The father testified, however, that he would have been willing to let her visit without a court order.
For a week or so after the grandmother filed the guardianship petition, she was unable to visit the children. On May 14, 2009, the guardianship court ordered the parties to agree to a visitation schedule. The father refused to agree to dates the grandmother requested; he offered only dates on which she had to work. As a result, it was three weeks until a ...