APPEAL from a judgment of the Superior Court of Trinity County, Anthony C. Edwards, Judge. (Super. Ct. No. 09PR018)
The opinion of the court was delivered by: Nicholson , Acting P. J.
CERTIFIED FOR PUBLICATION
Reversed with directions.
This appeal arises from the trial court's denial of a petition by the appellants' grandparents for a probate guardianship over appellants. 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 non-parent is required to serve the child's best interest. (Fam. Code, § 3041, subd. (a).) Detriment to the child must be supported by clear and convincing evidence. (Fam. Code, § 3041, subd. (b).)
However, Family Code 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. (Fam. Code, § 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 non-parent is in the child's best interest and that parental custody would be detrimental to the child. (Fam. Code, § 3041, subd. (d).)
In denying the grandparents' petition for guardianship of the children, that is, the appellants, the trial court determined the grandparents did not qualify for the "stable placement" rebuttable presumption because appellants had not been abandoned to the grandparents, a prerequisite of the statute, according to the trial court. It also determined the grandparents did not show by clear and convincing evidence that custody with them was in appellants' best interest and custody with the parent would be detrimental.
The appellants claim the trial court's ruling is a misinterpretation of law, and its conclusion of no detriment an abuse of discretion. We agree the trial court has misinterpreted the stable placement provision, and we reverse and remand on that basis. The stable placement provision of Family Code section 3041 is not dependent on the child first being abandoned with the non-parent.
Objector Ann Marie Vaughan and her former husband, Evan Vaughan, met as teens. They were together off and on for approximately six years prior to their marriage in 2006. During that time, two children, appellants here, were born to them; son Avery in 2003 and daughter Honey Bear in 2005. The family lived in many locations, including Weaverville and Hyampom in Trinity County, Humboldt County, and Hawaii. At times, they lived a hand-to-mouth existence, often living in a tent in the woods without visible means of support and with no electricity or modern conveniences. Evan suffers from bipolar disorder.
There is a significant history of domestic violence between Ann Marie and Evan. In 2006, Evan was convicted of misdemeanor cohabitant abuse. After his arrest for that crime, he and Ann Marie separated, then reconciled and married. Later that year, however, Evan was charged with more than 20 felony counts of kidnapping, spousal rape, and assault against Ann Marie, as well as child endangerment. Ann Marie claimed the children witnessed the attack.
Ann Marie filed for dissolution of marriage from Evan after the incident and moved to Humboldt County. She obtained sole legal and physical custody of the children. Over the next two years, she moved the family a number of times.
During 2007, she and the children participated in therapy with a licensed clinical social worker, Teri Vodden. Ann Marie sought the therapy, known as Parent-Child Interaction Therapy (PCIT), to address behavioral issues in Avery. Vodden also treated the children for post-traumatic stress caused by witnessing the violence ostensibly perpetrated by their father on their mother.
Also in 2007, Ann Marie was diagnosed as having post-traumatic stress disorder (PTSD) and affective personality disorder. It was also noted in her medical records that she had mild substance abuse problems. She chose not to undergo treatment for any of these problems.
While Ann Marie had sole custody of the children, Evan's mother and stepfather, petitioners Patti-Jeanne (hereafter Patti) and Mark Stuart, were granted supervised visitations with the children as part of the dissolution proceeding. The visitations, however, were not consistent in part because Ann Marie did not always take the children to the visits. Ann Marie grew increasingly distrustful of the Stuarts and their motives. She ultimately obtained a restraining order against them. She believed they were stalking her and the children, and that they had an unfavorable attitude towards her because of the criminal charges she raised against their son. She also was registered with a program of the California Secretary of State known as Safe at Home, through which she was applying to change her and the children's family name for safety reasons.
In early 2009, Evan was acquitted of all charges against him except for misdemeanor counts of assault and battery. The acquittal was very difficult for Ann Marie to accept. She became anxious and fearful, and she decided she needed help. On February 18, 2009, she checked herself into a mental health facility. But before doing so, she arranged through a friend of hers and co-workers of petitioner Patti Stuart to have Patti pick up the children. She thought she was going to need only a few days to feel better, and thus assumed Patti would have the children only for that time and then bring them back to her. Once the children were with the Stuarts, Ann Marie checked herself in.
The mental health center determined Ann Marie qualified for an involuntary hold under Welfare and Institutions Code section 5150, but she had gone there voluntarily and her stay was documented as such. She was diagnosed with PTSD and a major depressive disorder. However, she checked herself out of the facility the following day, February 19, 2009, against medical advice. Doctors were concerned because she had refused medication, she had a poor understanding of her illness, and she had not previously received psychiatric help or treatment.
But on the next day, February 20, she again checked herself in and was admitted as a "voluntary 5150." She tested positive for marijuana and an opiate. She admitted smoking marijuana, for which she had a doctor's recommendation, but denied taking an opiate. This time she was diagnosed with PTSD and panic disorder. At discharge, she accepted medication and agreed to seek ongoing treatment.
2. Petition for guardianship
Meanwhile, on February 19, 2009, the day after they received Avery and Honey Bear, the Stuarts filed a request for, and were granted temporary custody of the children. On April 30, 2009, they filed petitions for guardianship and temporary guardianship. They alleged guardianship was necessary because both Ann Marie and Evan were unsuitable to be custodial parents. They claimed Ann Marie "has untreated mental health needs that have led to violent mood swings, substance abuse, and cruelty toward the children." The also claimed Evan had a prolonged separation from the children due to his incarceration pending his trial, lack of means of support, and mental health difficulties which rendered him unsuitable as a custodial parent at that time. Ann Marie opposed the guardianship.
Temporary guardianship was granted on May 4, 2009. The matter next came up for hearing on June 11, 2009. The hearing was continued and held intermittently from then through May 24, 2010. During that time, the Stuarts maintained custody of the children as temporary guardians.
The court received testimony from Ann Marie and the Stuarts. The court also received oral and written testimony from court investigators and mediators, and court-appointed and private mental health professionals.
In her testimony, Ann Marie acknowledged she suffers from PTSD, and she admitted using marijuana pursuant to a medical recommendation to alleviate the symptoms of her disorder. She stated her disorder had no effect on her ability to care for her children. She also was actively in therapy.
Ann Marie stated Avery was having behavior problems when she separated from her husband. However, the PCIT therapy had been very effective, and Avery had become less aggressive with his sister and had developed a clearer idea of physical boundaries. Avery was very nice to Honey Bear, was a good big brother, and looked out for her.
Patti Stuart testified she has worked as a teacher for 21 years, the last 10 of which as a special education teacher. She stated the children were doing well in the Stuarts' care. Both children were involved in preschool and sports activities, and Avery had begun taking guitar lessons. Patti and her husband Mark were able to spend time with the children, as she had reduced her work schedule to three days a week and Mark worked only from August to October. He operated a water truck business for servicing wildfires.
Patti had concerns about Avery's behavior when he first moved into her home. Avery wanted to head-butt everybody and used his toys to kill. He also asked Mark and Patti to check on him every two minutes while he slept. These characteristics had subsided by the time of trial, and Avery seemed more comfortable.
Patti also noticed Avery constantly attempted to protect and physically care for his younger sister, Honey Bear. Patti referred to this as parentification, something she had seen in her years of teaching. This behavior by Avery had subsided somewhat, but he still felt it was his job to take care ...