1

Filed 9/14/23 G u ardianship of X.M. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Guardianship of X.M. et al., Minors.

BABYLISA T.,

P etitioner and Appellant,

v.

JASON M.,

Objector and Respondent. A166225

(Humboldt County

Super. Ct. No. PR2200036)

This is an appeal from an order denying the petition for guardianship

filed by petitioner Babylisa T. , the maternal grandmother of three young

minors, against their father, objector Jason M. The minors are X.M. (a boy)

,

R.M. (a boy)

, and E.M (a girl)

.

Babylisa T. (maternal grandmother) , proceeding in propria persona

,

sought this guardianship based on allegations that Jason M. (father) was

abusing the minors and failing to attend to their basic needs, including their

dental care. The trial court denied her petition after finding no evidence to

support t he se allegations.

On appeal, father chos e not to file a respondent’s brief . Nonetheless,

w e agree with the trial court ’s findings and order

, and therefore affirm.

While very serious allegations have been raised, the appellate record contains

no clear and convincing evidence of abuse, mistreatment or neglect that2

would warrant removing the minors from father’s custody and awarding

guardianship to maternal grandmother

.

FACTUAL AND PROCEDURAL BACKGROUND

The record on appeal consists of : (1) the notice of appeal , filed

September 12 , 2022, attaching the findings and order after hearing , entered

nunc pro tunc as of August 1, 2022; (2) appellant’s notice designating record

on appeal , filed October 5, 2022; and (3) the hearing transcript dated

August 1 , 2022. From this abbr eviated record, we glean the following facts.

On June 10 , 2022, following a hearing at which father was not present

,

the court issued an order appointing maternal grandmother temporary

guardian of the minors. The minors’ respective ages are unclear ; however, it

appears the two boys , X.M. and R.M., have special needs.

On February 10 , 2022, maternal grandmother filed a petition to be

appoint ed g uardian of the minors (petition). A contested hearing was held on

August 1 , 2022 , at which maternal grandmo ther and father testified.

According to maternal grandmother’s testimony, the minors became

“distraught, emotionally, mentally and physically

, ” in father’s presence. Just

before the hearing, maternal grandmother sa w father “pulling at the arms of

[E.M.] and [R.M.] , trying to force them to come to him, and they were not

willing to do that at that time, very afraid, with their hands over their eyes.

There were several marks that I noticed on the children’s bodies when I got

them, welts and keloids

. . . . ”

M aternal grandmother also referenced “the court investigator’s report

from Changing Tides, ” which was one of the family’s service providers. The

court , however, sustained a hearsay objection raised by father’s attorney, who

complained that he never recei ved a copy of this report. The court explained

to maternal grandmother that she could testify as to her personal3

observations but that she could not testify about the contents of a report that

was not in evidence. M aternal grandmother thereafter testified that, among

other things, the minors had significant dental issues that father had failed

to address, the minors were afraid of father and prefer red to be with her, and

father smokes marijuana throughout the day

.

F ather , in turn, testified that he had been the minors’ primary

caregiver since September 2019. In that role, he took care of all of their

needs

— including their food, security

, medical, and special education needs.

He also secured several service provider s to assist the family, particularly to

address his sons’ special needs. He denied abusing the minors but

acknowledged that he would sometimes “flick” his sons to redirect them when

they were behaving in an unsafe way. He also acknowledged using medical

marijuana for chronic back pain.

Following the hearing , the trial court denied the petition and dissolved

the temporary guardianship order. 1 The court reasoned there was no

evidence that would allow it to override legal parental custody for a

guardiansh ip. Specifically, while “[t]here may be disagreements with

parental methods, especially with special needs children, but, again, [there

is] no evidence that the kids are in a state that would

— require that they be

removed from a custodial parent.” On Sept ember 12 , 2022, maternal

grandmother filed a notice of appeal of th e court’s findings and order.

DISCUSSION

Maternal grandmother seeks reversal of the trial court’s order denying

her petition to be appointed guardian of the minors and reinstatement of the

temporary guardianship order pending a thorough investigation of her

1 The court’s order, dated September 28 , 2022, provides that it “is

entered Nunc Pro Tunc to 08/01/2022.”4

allegations of father’s neglect and abuse. Maternal grandmother argues that,

in light o f the evidence that father abused and neglected the minors, the trial

court erred by failing to refer this matter to Child Protective Services for

investigation. She further argues that her petition should have been granted

because father failed to offer clear and convincing proof that his ret ention of

custody of the minors would not be detrimental, citing Family Code section

3041.

We begin with the basic principles of appellate law. We presume an

order of the trial court is correct and make all inferenc es in favor of the order.

( Denham v. Superior Court (1970) 2 Cal.3d 557, 564 .) On matters as to which

the record is silent, it is the appellant’s burden to affirmatively show error.

( Ibid

. ) The appellant also bears the burden of providing coherent legal

arguments with citation to appropriate legal authority and to the relevant

record on appeal. (

Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655; Salehi v.

Surfside III Condominium Owners Assn

. (2011) 200 Cal.App.4th 1146, 1 161

–

1162 .) Moreover, the appellant bears the burden of providing this court with

a record on appeal that permits us to determine whether the trial court erred.

( Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)

Failure to meet thes e burdens results in the appellant’s forfeiture of his or

her arguments on appeal. ( Keyes

, at p. 655; Salehi

, at p. 1162.)

With respect to the law governing guardianships, “ ‘[a] relative or other

person on behalf of the minor, or the minor if 12 years of age or older, may

file a petition for the appointment of a guardian

. . . .’ (Prob. Code, § 1510,

subd. (a).) The probate court may appoint a guardian ‘if it appears necessary

or convenient.’ (Prob. Code, § 1514, subd. (a).) [Fn. omitted.] An

investigation into the circumstances of the proposed guardianship may be

conducted, though the court may waive the investigation. ( Prob. Code,5

§ 1513, subd. (a). ) [Fn. omitted.] A pro bate guardianship is often established

with parental consent

. . . . [Citations.] A parent who objects to guardianship

is entitled to notice and a hearing. (Prob. Code, § 1511.) ” ( Guardianship of

Ann S. (2009) 45 Cal.4th 1110 , 1122.)

“ The Probate Code now specifies that the appointment of a guardian is

governed by the Family Code chapters beginning with sections 3020 and

3040. (Prob. Code, § 1514, subd. (b).) [¶] Family Code section 3020,

subdivision (a) declares that ‘the health, safe ty, and welfare of children shall

be the court ’ s primary concern in determining the best interest of children

when making any orders regarding the physical or legal custody or visitation

of children.’ Under Family Code section 3040, subdivision (a) , paren ts are

first in the order of preference for a grant of custody, but ‘the court and the

family’ are allowed ‘the widest discretion to choose a parenting plan that is in

the best interest of the child.’ (Fam. Code, § 3040, [former] subd. (b) .) [ 2 ]

Before g ranting custody to a nonparent over parental objection, the court

must find ‘clear and convincing evidence’ that ‘granting custody to a parent

would be detrimental to the child and that granting custody to the nonparent

is required to serve the best intere st of the child.’ (Fam. Code, § 3041, subds.

(b), (a).)” ( Guardianship of Ann S.

, supra , 45 Cal.4th at p. 1123.)

Here, t he f

law f ata l to maternal grandmother’s appeal is the lack of any

evidence , much less clear and convincing evidence, to support the removal of

the minors from father’s custody and the appointment of a nonparent

guardian. (Fam. Code, § 3041, subds. (b), (a).) The trial court found as much

after the August 1 , 2022, hearing on he r petition. On appeal, in an effort to

prove otherwise

, m aternal grandmother relies almost exclusively on a n

2 This language is now found in Family Code section 3040,

subdivision (e).6

alleged report prepared by a court

- appointed investigator that is nowhere in

the appellate record and was not before the trial court at the contested

hearing. 3 It goes without saying matern al grandmother ’s reliance on this

extrarecord report, or anything in it, is misplaced

. ( People v. Zabelle (2022)

80 Cal.App.5th 1098, 1115, fn. 6 [“ If the record is insufficient to support a

trial court’s findings

. . . , we will not presume the existence of extrarecord

materials, however likely they are to exist, to address this insufficiency ”]. )

Maternal grandmother also contends that father had the burden to

prove by clear and convincing evidence that retaining custody of the minors

would not be detrimental, citing Family Code section 3041. Not so. “ ‘It is a

cardinal rule of our society that the custody, care and nurture of a child

resides first in the parents rather than in a public agency. [Citations.] As

stated in In re Carmaleta B. (1978) 21 Cal.3d 482 at page 489

. . . :

“Parenting is a fundamental right, and accordingly, is disturbed only in

extreme cases of persons acting in a fashion incompatible with parenthood.

Thus,

. . . ‘[t]he relationship of

. . . nat ural parent

. . . [and] .

. . children is a

vital human relationship which has far

- reaching implications for the growth

and development of the child. [Citation.]

. . . [T]he involuntary termination of

that relationship by state action must be viewed as a drastic remedy which

should be resorted to only in extreme cases of neglect or abandonment’

3 Oddly, maternal grandmother also argues the trial court erred by

relying on this court

- appointed investigator’s report because the report failed

to comply with Probate Code section 1513, subdivision (a)(3) . A s mentioned,

at the contested hearing it was maternal grandmother who brought up this

report , which she described as having bee n prepared by Changing Tides.

However, t he court sustained father’s hearsay objection to maternal

grandmother’s testimony regarding the report and instructed her to testify

only as to her personal observations. Thus, contrary to maternal

grandmother’s cl aim, the court did not rely on the report.7

[citations].

. . . [S]evering the parental relationship [must be] the least

detrimental alternative for the child.” ’ ” ( Guardianship of Jenna G. (1998)

63 Cal.App.4th 387, 392.) “T h [is] preference for parental custody is

adequately protected by requiring that the petitioner demonstrate by clear

and convincing evidence that parental custody is detrimental to the child,

without attempting to enumer ate, by judicial gloss on the statutory language,

what categories of factual circumstances may or may not be recognized as

detrimental to the child. ” ( Guardianship of Olivia J. (2000) 84 Cal.App.4th

1146, 1157, italics added .) As such, the trial court pr operly placed the burden

of proof on maternal grandmother

, as the petitioner

, and not on father

.

W e acknowledge maternal grandmother has not been represented by

counsel during these proceedings. However, t he law is clear that an

appellant’s status as an in pro. per. litigant does not excuse his or h er

non compliance with mandatory rules of law. ( Kobayashi v. Superior C ourt

(2009) 175 Cal.App.4th 536, 543; Rappleyea v. Campbell (1994) 8 Cal.4th 975,

985 [“A doctrine generally requiring or permitting exceptional treatment of

parties who represent themselves would lead to a quagmire in the trial

courts, and would be unfair to the other parties to litigation”].) Accordingly,

we reject maternal grandmother’s ap peal and affirm the lower court’s

findings and order.

DISPOSITION

The findings and order of August 1 , 2022, is affirmed

.8 _________________________ Jackson, P. J.

WE CONCUR:

_________________________ Simons, J.

_________________________ Burns, J.

A166225/ Babylisa T. v. Jason M.