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Guardianship of S.M., A Minor. C.L v. S.S


December 7, 2011


(Super. Ct. No. PR74683)

The opinion of the court was delivered by: Hoch, J.

Guardianship of S.M.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

S.S., mother of minor S.M., appeals from the superior court's order granting the petition for appointment of guardian of the minor filed by C.L., the minor's maternal grandmother. (Prob. Code, § 1514.) Mother contends the court denied her due process because (1) she was not given proper notice of the hearing, (2) the court failed to take oral or documentary evidence in making its order, and (3) she was denied her right to a court trial. Because the record shows that mother was not provided an opportunity to offer evidence at the hearing, we reverse and remand for further proceedings consistent with this opinion.


The record provided to us in this case consists of a clerk's transcript and the parties' agreed statement on appeal (Agreed Statement). (Cal. Rules of Court, rule 8.134.)*fn1 There is no reporter's transcript.*fn2 The limited record establishes the following:

C.L. filed a petition for appointment of temporary guardian of the minor in February 2004. At some point thereafter, the court appointed C.L. as the minor's temporary guardian effective "until the next court hearing" scheduled June 18, 2004, and ordered supervised visitation between mother and the minor at the guardian's home. Letters of temporary guardianship issued.

At the June 18, 2004, hearing, the court scheduled the matter for trial on September 24, 2004, and entered other orders regarding visitation and non-residential drug counseling for mother.

For the next several years, the court repeatedly continued the trial date and ordered that the temporary guardianship remain in effect, extending the letters of temporary guardianship to coincide with impending review dates.

On August 3, 2009, with all parties present, the court continued the existing visitation schedule and set the matter for review on September 21, 2009, the date the letters of temporary guardianship were set to expire.

All parties were present at the September 21, 2009, hearing. The minute order reflects that the court considered issues raised by minor's counsel regarding visitation and, "[o]ver the objection of [counsel for mother]," appointed C.L. as guardian of the minor. The order and the letters of guardianship were filed that day.

Mother filed a timely notice of appeal.


Mother contends she did not receive proper written notice informing her of the nature of the September 21, 2009, proceedings or giving her an opportunity to respond, and that in appointing a permanent guardian, the court acted over her objection and without receiving oral or documentary evidence or conducting a trial. Mother claims she is entitled to a court trial under Probate Code section 1452, and the denial of that right resulted in prejudice "in light of the previous agreement of the parties to forgo trial and agree to the continuing temporary guardianship." In support of each of her claims, mother cites to the Agreed Statement.

The party challenging the judgment or order has the burden of showing error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Estate of Davis (1990) 219 Cal.App.3d 663, 670 & fn. 13.) An appellant "bears the burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the [appellant]." (People v. Sullivan (2007) 151 Cal.App.4th 524, 549; accord People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084.) "'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .'" (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)

Here, the record contains a clerk's transcript and the Agreed Statement. An agreed statement must consist of "a condensed statement of the relevant proceedings." (Le Font v. Rankin (1959) 167 Cal.App.2d 433, 436-437; Cal. Rules of Court, rules 8.134, 8.137.) When parties stipulate in an agreed statement to all the facts and cause such stipulation to be made a part of the record, "the facts so recited take the place of findings, and on appeal the appellate tribunal must look to the stipulation of facts for the facts of the case. [Citations.]" (Larkin v. Bank of America (1949) 93 Cal.App.2d 594, 603.)

With regard to what took place at the hearing, the record is sparse. The September 21, 2009, minute order states, "There has been only a Temporary Guardianship granted previously. [¶] Over the objection of [the public defender]: [¶] The Court grants the petition for Guardianship for [the minor] filed by [C.L.] [¶] Letters issued this date. [¶] Visitation for minor and mother, remains as previously set."

The relevant portion of the Agreed Statement states, "On September 21, 2009 over the objection of [mother]'s attorney, without notice to the parties and without taking oral or documentary evidence, on the court's own motion the trial court judge converted the temporary guardianship to a permanent guardianship."

While the Agreed Statement fails to describe the nature of mother's objection or provide any specific information regarding the court's findings or ruling, it does make clear that the court took no oral or documentary evidence and acted on its own motion in granting the petition for permanent guardianship. The parties stipulated to that fact.

A relative or other person on behalf of the minor may file a petition for the appointment of a guardian of the minor (Prob. Code, § 1510, subd. (a)) and, "[u]pon hearing of the petition," the court may appoint a guardian of the minor or the minor's estate, or both, "if it appears necessary or convenient." (Prob. Code, § 1514, subd. (a), italics added.)

The requirement of a hearing on the guardianship petition implores that due process be afforded the parties to the proceeding. The essence of due process is fairness in the procedure used where the outcome may be the loss of parental custody of a child. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412.) For example, because parents enjoy a fundamental liberty interest in the care, custody and control of their children, parental rights cannot be terminated except according to procedures that satisfy due process. (Santosky v. Kramer (1982) 455 U.S. 745, 753-754 [71 L.Ed.2d 599, 606]; In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 17.) In dependency proceedings, due process includes the right to a trial on the issues raised by the petition, the right to confront and cross-examine witnesses, and the right to compel the attendance of witnesses. (In re Malinda S., supra, at pp. 383-384.) While there is no termination of parental rights in the guardianship context, only a transfer of the decision-making responsibility to someone other than the parent (Guardianship of Diana B. (1994) 30 Cal.App.4th 1766, 1776), due process nonetheless requires, at the very least, a hearing during which the parties are afforded a meaningful opportunity to present evidence in support of the grant or denial of the petition.

Here, the hearing conducted by the court lacked due process. Mother claims the court took no oral or documentary evidence before entering its order. By virtue of the Agreed Statement, respondent stipulated to that fact. While we could surmise that the court had substantial information about the parties and the guardian from its involvement in other hearings, and that it relied solely on that information in making its determination, mother was deprived of due process when she was not provided an opportunity to offer evidence at the hearing. The trial court is directed to properly notice and conduct a new evidentiary hearing on the petition for guardianship, at which each party shall have an opportunity to offer evidence in support of its position with respect to the petition for guardianship.


The order granting the petition for guardianship is reversed, and the matter is remanded to the trial court with directions to conduct a new evidentiary hearing consistent with this opinion.

We concur: RAYE , P. J. BUTZ , J.

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