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Filed 9/14/23 Guardianship 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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.,

Petitioner 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 these allegations.

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

we 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 that 
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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 abbreviated 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

appointed guardian of the minors (petition). A contested hearing was held on 

August 1, 2022, at which maternal grandmother 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 saw 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 . . . .”

Maternal 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 received a copy of this report. The court explained 

to maternal grandmother that she could testify as to her personal 
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observations but that she could not testify about the contents of a report that 

was not in evidence. Maternal 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 preferred to be with her, and 

father smokes marijuana throughout the day.

Father, 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 providers 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 

guardianship. 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 September 12, 2022, maternal 

grandmother filed a notice of appeal of the 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.”
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allegations of father’s neglect and abuse. Maternal grandmother argues that, 

in light of 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 retention 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 inferences 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, 1161–

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 these 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, 
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§ 1513, subd. (a).) [Fn. omitted.] A probate 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, safety, 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), parents 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 granting 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 interest of the child.’ (Fam. Code, § 3041, subds. 

(b), (a).)” (Guardianship of Ann S., supra, 45 Cal.4th at p. 1123.)

Here, the flaw fatal 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 her petition. On appeal, in an effort to 

prove otherwise, maternal grandmother relies almost exclusively on an 

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

subdivision (e).
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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 maternal 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 . . . natural 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). As mentioned, 

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

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

However, the 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 claim, the court did not rely on the report.
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[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.) “Th[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 enumerate, 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 properly placed the burden 

of proof on maternal grandmother, as the petitioner, and not on father.

We acknowledge maternal grandmother has not been represented by 

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

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

noncompliance with mandatory rules of law. (Kobayashi v. Superior Court

(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 appeal and affirm the lower court’s 

findings and order.

DISPOSITION

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

Jackson, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Burns, J.

A166225/Babylisa T. v. Jason M.