Filed 3/11/20 Pardes v. Wienick CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

FRED S. PARDES,

Plaintiff and Appellant,

v.

ANDREW S. WIENICK et al.,

Defendants and Respondents.

G057362

(Super. Ct. No. 16FL000271)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Salvador Sarmiento, and Linda Lancet Miller (retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Judges. Affirmed.

Fred S. Pardes, in pro. per., for Plaintiff and Appellant.

Law Office of Robert Newman and Robert Newman for Defendants and Respondents.

* * *

Appellant Fred S. Pardes appeals from the trial court’s order denying his petition for grandparent visitation under Family Code section 3102. Pardes is the maternal grandfather of N.W. and S.W. (the grandchildren), and the father of Jennifer Wienick (mother) who died in 2015 and was the children’s natural mother. Respondents Andrew S. Wienick and Darshann M. Wienick (the Wienicks) are the children’s natural father and adoptive stepmother.

Pardes asserts 19 grounds for appeal in his table of contents, asserting each constitutes “prejudicial and reversible error.” His opening brief lists 22 “significant and novel issues in Grandparent Visitation law.” Many of these grounds and issues are reiterations of Pardes’s view of the underlying facts and are in effect requests for us to reweigh the evidence, which is something we cannot do.

In addition, many of Pardes’s grounds are not supported by citations to the record; others are not accompanied by any legal argument or authority. (See Cal. Rules of Court, rule 8.204(a)(1)(c).) Based on such violations, we could dismiss the appeal or strike Pardes’s briefs. (Spangle v. Farmers Ins. Exchange (2008) 166 Cal.App.4th 560, 564, fn. 3.) We decline to do so. Instead, we shall disregard any unsupported factual claims and treat any arguments not based on accurate citations to the record and legal authority as forfeited. (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1169, fn. 10; Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.)

We find Pardes has not shown the trial court erred by denying his petition for visitation based on his failure to meet the applicable burden of proof under section 3102. We therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

In 2016, Pardes filed a “Petition for Grandparent Visitation.” The Wienicks opposed it. A subsequent evidentiary hearing occurred over several days in 2017 and 2018.

Pardes called Alice Nelson as a witness. Nelson had a personal relationship with Pardes since 2013. Between 2013 and mother’s death in June 2015, Nelson was at Pardes’s house at times when mother had her post dissolution custodial visitations with her children. Nelson observed what she described as “loving” interactions between Pardes and the grandchildren, and said they called him “Papa.” Nelson authenticated photographs from this time period as either being taken by her or by mother. The photos depicted Pardes and the grandchildren in a variety of settings in and around Pardes’s residence in Dana Point.

Nelson stated that, on all but two or three occasions, the children’s visits with Pardes occurred during mother’s custodial visitation time. The few occasions, when mother was not present, and Pardes was “babysitting,” lasted “maybe an hour.” Nelson was unaware of any occasion when Pardes was the only adult taking care of the grandchildren.

Pardes testified. He authenticated additional photographs depicting him and the grandchildren, which he stated were taken in 2012, 2013, and 2014.

Before recessing the matter, the trial court told Pardes that when the hearing resumed he was to focus on the “second part of [section 3102], which is best interest [of the grandchildren] in terms of exercising visitation with you; . . . [¶] I want you to spend the next time we’re back on detriment [to the grandchildren].” The court also appointed an attorney, Diane Vargas, to represent the grandchildren.

When the evidentiary hearing resumed, Vargas told the court “the children are not of sufficient age nor of sufficient maturity to render an opinion as to whether or not they should see or not see their grandfather.” She added, “They have a relationship with their maternal grandmother [from] whom [Pardes] is divorced, and they don’t have a relationship with [Pardes] now. . . . [t]hey say that they do not want to see [Pardes].” One grandchild told Vargas, “I don’t remember my grandfather, but he turned out to be mean, stole my grandmother’s money.” The other grandchild told her “he did not want to see [Pardes],” and stated, “he speaks with a pseudo-New York accent, he is burly and he tickles me, and I don’t like to be touched.” Vargas added the grandchildren were aware of and “involved in” the ongoing litigation between the parties.

Pardes attempted to present expert testimony from Dr. Leslie Drozd, an expert in child custody evaluations and parental alienation issues; he stated Dr. Drozd had not spoken to the Wienicks or to the grandchildren. The court excluded the testimony stating, “I do not believe that the expert that [Pardes] has brought in can give us any opinions as to the best interest or detriment to these children in that the expert has not spoken to the children or the parents . . . [and she] cannot give any opinions, which, in reality, is what I would need from an expert.”

Pardes resumed his testimony, and introduced a series of e-mails showing the hostile interactions between Pardes and the Wienicks. He testified that, despite the animosity, he had made unsuccessful attempts to reconcile with the Wienicks.

The court reminded Pardes the focus of the inquiry was the grandchildren, not his relationship with the Wienicks. Pardes finally explained that “[b]y not having a loving grandparent, grandfather in their lives, I believe the children are suffering an injury.” He offered a list of things he could and would do that would benefit the grandchildren if he were given visitation rights; he did not offer any evidence of doing such things in the past.

Pardes acknowledged his last visit with the grandchildren was in June 2015, just before mother died. He introduced e-mails showing attempts after mother’s death by the parties to create an agreeable visitation arrangement. Pardes testified he had brief, five-minute telephone and FaceTime contacts with the grandchildren between October 2015 and early December 2015. He stated these were his last contacts with the grandchildren. Pardes concluded by introducing additional pre-2015 photographs, again taken during mother’s custodial visits with the grandchildren.

At that point, and without taking any evidence from the Wienicks, the trial court “invite[d] argument on a nonsuit,” ordered additional briefing, and scheduled oral argument. The Wienicks responded by filing a “Motion for Judgement Under CCP § 631.8,” alleging Pardes had failed to meet his burden of proof for grandparent visitation under section 3102. Pardes filed a lengthy opposition. After argument, the court granted the Wienicks’ motion.

In its statement of decision, the court made factual findings: (1) Pardes’s argument that visitation is always in the best interests of the grandchildren does not “equate or equal” what is in the best interests of the grandchildren; (2) Pardes “has not had contact” with the grandchildren in three years; (3) the younger grandchild was seven years old at the time of the hearing and was only four when he last saw Pardes; (4) any earlier bonding between the younger grandchild and Pardes is “likely no longer present”; (5) the older grandchild was 12 years old at the time of the hearing and he had not had “meaningful contact” with Pardes since he was nine; (6) Pardes’s evidence regarding his earlier “relationship with the grandchildren” was “very, very weak”; (7) Pardes did not submit “any evidence whatsoever” of a current relationship with the grandchildren; (8) Pardes’s evidence showed his only prior contacts with the grandchildren were “during their mother’s custodial time”; (9) Pardes failed to establish any “detriment to the [g]randchildren in not having visitation with [Pardes]”; and (10) Pardes “failed to establish that it would be in the best interests of the grandchildren to have visitation.”

As conclusions of law, the court found: (1) Pardes failed to meet his burden of proving by clear and convincing evidence that it was in the best interests of the grandchildren to have visitation; (2) the Wienicks were presumed to act in the best interests of their children in deciding visitation issues, and Pardes failed to provide any evidence the Wienicks failed to act in their children’s best interests; (3) the Wienicks’ decision to deny Pardes visitation does not indicate they are unfit parents, and Pardes failed to introduce any evidence the Wienicks were unfit; and (4) in order to obtain visitation, Pardes was required to satisfy both prongs of the two-part test found in section 3104, subdivision (a), which he failed to do by clear and convincing evidence.

DISCUSSION

1. Legal Background

“Grandparents’ rights to court-ordered visitation with their grandchildren are purely statutory.” (In re Marriage of Harris (2004) 34 Cal.4th 210, 219 (Harris).) “If either parent of an unemancipated minor child is deceased, the . . . parents . . . of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.” (§ 3102, subd. (a).) As for the rights of a surviving parent, however, there are important constitutional considerations.

Troxel v. Granville (2000) 530 U.S. 57 (Troxel) involved grandparents who sought visitation rights with their deceased son’s children over the objection of the surviving parent.

A plurality of the high court found “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” (Troxel, supra, 530 U.S. at p. 66 (plur. opn. of O’Connor, J.).) ‘“The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.”’ (Id. at p. 68 (plur. opn. of O’Connor, J.).) Thus, “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” (Id. at pp. 68-69 (plur. opn. of O’Connor, J.).)

“‘Encompassed within [this] well-established fundamental right of parents to raise their children is the right to determine with whom their children should associate.’” (Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1107 (Punsly), disapproved on other grounds in Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1226, fn. 4.)

After Troxel, section 3102 has been held unconstitutional as applied where trial courts disregarded the weight to be given to the surviving parent’s desires regarding visitation. (See, e.g., Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242, 1253 (Zasueta) [court erred in dismissing surviving parent’s concerns about visitation instead of according them special weight]; Punsly, supra, 87 Cal.App.4th at p. 1109 [trial court erred because it did not apply a presumption that the surviving parent’s visitation decisions were in the child’s best interest]; cf. Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 864 (Kyle O.) [parent was willing to allow grandparent visitation; he simply did not want a court-imposed visitation schedule; such schedule violated Troxel].)

Even so, while “[a] custodial parent’s decisions regarding visitation are entitled to presumptive validity and must be accorded ‘special weight,’ . . . they are not immune from judicial review.” (Guardianship of L.V. (2006) 136 Cal.App.4th 481, 493.) As a result, “[c]ourts have construed section 3102 as requiring a rebuttable presumption in favor of a fit surviving parent’s decision that grandparent visitation would not be in the best interest of the child.” (Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1180 (Rich).) “To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. The fair import of the word ‘detriment’ is damage, harm, or loss. [Citation.] If grandparent visitation is in the grandchild’s ‘best interest,’ it is not ‘detrimental.’ If grandparent visitation is not in the grandchild’s ‘best interest,’ it is ‘detrimental.” (Ibid.; see Evid. Code, § 606 [“The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact”].)

The clear and convincing burden requires evidence that is ‘“‘“sufficiently strong to command the unhesitating assent of every reasonable mind.””” (Harris, supra, 34 Cal.4th at pp. 248, 250 (conc. & dis. opn. of Chin, J.).) Such a substantial burden of proof preserves and promotes a parent’s constitutionally protected choice as to the best interests of the child. It also preserves the constitutionality of section 3104 and insures against erroneous and overreaching judicial factfinding. (Harris, at p. 250 (conc. & dis. opn. of Chin, J.).)

Section 3104 codifies additional procedures related to grandparent visitation under section 3102: “On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following: [¶] (1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. [¶] (2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.” (§ 3104, subd. (a)(1), (2).) In addition, “[t]here is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent . . . with whom the child resides . . . objects to visitation by the grandparent.” (§ 3104, subd. (f), italics added.)

2. Standard of Review

We review an order for grandparent visitation using the deferential abuse of discretion standard, viewing the evidence most favorably in support of the court’s order. (Rich, supra, 200 Cal.App.4th at p. 1182; cf. Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 [‘“review of custody and visitation orders is the deferential abuse of discretion test”’].) When evaluating a trial court’s ruling for an abuse of discretion, we review its findings of fact for substantial evidence and its conclusions of law de novo. The trial court’s “application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712.) “The appellant bears the burden of showing a trial court abused its discretion.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16.)

3. Analysis and Application

A. The Presumption against Grandparent Visitation

Pardes contends the only applicable presumptions in this matter favor him, not the Wienicks. We disagree.

Throughout his briefing, Pardes refers to what he calls a “rebuttable presumption in favor of grandparent visitation,” and claims that because the Wienicks failed to overcome this presumption below, reversal is required. He never identifies the source or nature of this presumption, or any authority showing its existence. We can find no such presumption in any California case or statute.

Pardes elsewhere refers to a rebuttable presumption that grandparent visitation is always in the best interests of the grandchild. Again he provides no relevant authority to support such a presumption. Once more, we can find none.

The authority Pardes offers for this supposed presumption does not help him. The trial court’s anecdotal comments how grandparent visitation might be beneficial in a particular case do not “clearly establish” such a presumption. Neither do attorney Vargas’s off-hand comments to the court about how, as a grandmother herself, “[i]t’s just good for kids to have grandparents if those grandparents don’t have, you know, problems.” Finally, the 1975 pre-Troxel New Jersey case—which was based on a New Jersey statute almost identical to the Washington statute found unconstitutional in Troxel—is not persuasive.

Because the Wienicks objected to Pardes’s visitation with the grandchildren, we must presume that visitation with Pardes was not in the best interest of the grandchildren. (§ 3104, subd. (f); In re Marriage of W. (2003) 114 Cal.App.4th 68, 74-75; Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1479, fn. 4; Zasueta, supra, 102 Cal.App.4th at p. 1253.) No other presumptions apply.

B. Pardes Did Not Show the Wienicks Were Unfit Parents

Pardes argues he short-circuited any parental Troxel presumption by proving at the outset the Wienicks were unfit parents and therefore not entitled to the benefit of the presumption against grandparent visitation. Again, we must disagree.

It is true section 3102’s presumption only applies in favor of a fit surviving parent’s decision that grandparent visitation would not be in the best interest of the grandchild. (Rich, supra, 200 Cal.App.4th at p. 1180; Troxel, supra, 530 U.S. at p. 68 (plur. opn. of O’Connor, J.) [“so long as a parent adequately cares for his or her children (i.e., is fit)” the presumption applies].) However, Pardes did not establish the Wienicks did not adequately care for the grandchildren in the sense Justice O’Connor’s opinion discusses.

Pardes insists the Wienicks were unfit parents only because of their personal animosity towards him and their refusal to let him visit his grandchildren. “I’m not saying [the Wienicks] are grossly unfit parents on other issues,” he told the trial court. “I’m saying that they are unfit as it relates to me.” He added the Wienicks’ “refusal to permit visitation of [the grandchildren] by myself, clearly, shows they are unfit parents.”

As his legal support for this claim, Pardes refers us to Zasueta, supra, 102 Cal.App.4th at p. 1248. That case does not support his argument. In Zasueta, it was the trial court that found the surviving parent unfit. Pardes’s quotation from Zasueta in his opening brief regarding the parent’s unfitness in that case is misleadingly taken from the trial court’s order (ibid.), which the Court of Appeal went on to reverse.

The Zasueta court found the “[Grandparents] did not allege or present evidence that [surviving parent] did not properly care for the minor child and was thus an unfit parent. In fact, [grandmother] testified that [surviving parent] was a good mother and she had no reason to believe [she] would not act in the minor child’s best interests. The court’s finding of unfitness was erroneously based on the assumption that grandparent-grandchildren relationships always benefit children.” (Zasueta, supra, 102 Cal.App.4th at p. 1253.)

“The [trial] court’s ‘announced presumption in favor of grandparent visitation’ effectively placed the evidentiary burden on [surviving parent] to show the visitation was not in the minor child’s best interests. [Citation.] This error violated not only constitutional principles, but also the language of section 3102, which permits visitation where there has been a finding that visitation is in a child’s best interests. Here, there was no such finding. Instead, the court presumed grandparent visitation was beneficial and, based on this presumption, made a finding that [surviving parent] was an unfit parent. . . . [T]his was not a proper basis for the court’s visitation order.” (Zasueta, supra, 102 Cal.App.4th at p. 1254.) Zasueta does not support Pardes’s claim.

Finally, Pardes provides no authority for his proposition that parental fitness for purposes of the Troxel presumption is determined by the relationship the surviving parent has with the grandparent, rather than with the grandchildren. Pardes thus failed to avoid the Troxel presumption here.

C. Pardes Failed to Satisfy Section 3104

Pardes’s first evidentiary challenge to overcome the Troxel presumption was to show there was a preexisting relationship between him and the grandchildren. (§ 3104, subd. (a)(1).) The Wienicks stipulated to this. The court accepted the Wienicks’ offer to stipulate and found “that element within the statute will have been met.”

Pardes nonetheless also had to show this “preexisting relationship . . . engendered a bond such that visitation is in the best interest of the [grandchildren].” (§ 3104, subd. (a)(1).) Only if Pardes carried his burden as to this threshold showing would the inquiry move on to the second step, i.e., balancing the grandchildren’s interest in having visitation with Pardes against the Wienicks’ right to exercise their parental authority. “[T]he nature of the preexisting relationship serves to determine whether the petition may be granted, what the grandchild’s best interests require, and the type of visitation that might be appropriate.” (Stuard v. Stuard (2016) 244 Cal.App.4th 768, 787, italics added.)

To overcome the Troxel presumption, Pardes was obliged to show, by clear and convincing evidence, his preexisting bond with the grandchildren was so strong that denial of visitation would not be in their best interest and, in fact, would be detrimental to them. (Rich, supra, 200 Cal.App.4th at p. 1180; Harris, supra, 34 Cal.4th at p. 230.) Based on the record before us, Pardes failed to meet this formidable burden.

Pardes disagrees with this procedural analysis and cites Hoag v. Diedjomahor (2011) 200 Cal.App.4th 1008 (Hoag) to support his position. His reliance on that case is misplaced. In Hoag, “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.” (Id. at p. 1010, italics added.)

Here, the e-mail evidence Pardes himself introduced shows the Wienicks feared he would be a bad influence on the children. The Wienicks did not admit grandparent visitation would be in the best interests of the grandchildren. Indeed, Pardes’s e-mail evidence again shows they were adamant in their belief it would be detrimental.

Thus unlike here, the first prong of the section 3102 test was established in Hoag, and the Troxel presumption vanished. “This not only allowed but affirmatively required the trial court to determine what visitation schedule was in the best interest of the children.” (Hoag, supra, 200 Cal.App.4th at p. 1020.) Here, Pardes failed to make such a showing.

The trial court found Pardes failed to produce clear and convincing evidence of the preexisting bond with his grandchildren was so strong that denial of visitation would be detrimental to them. On the record before us, we cannot find this was an abuse of discretion.

D. The Deceased Mother’s “Interests”

Pardes argues the deceased mother retained cognizable legal interests in this matter, and he is entitled to vicariously assert them on her behalf. He claims, “A deceased parent still has some legal rights. The right to remain a memory to their children. The Wienicks do not have the right to wipe out [the grandchildren’s] memory of [their mother], who regardless of her mothering skills, deeply loved both boys.” He alleges section 3102 “grants a deceased person legally enforceable rights, to have a family member remain as part of their children’s lives.”

We are not persuaded a deceased mother has due process rights in this context, or that her progenitor has standing to raise them. Pardes gives us no authority to support this novel position. Absent authority for such a claim, we reject it. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.)

But even if we were to address it, the claim would fail. “[A]s a matter of law, [mother’s] death did not imbue the grandparents with their daughter’s parental rights or diminish [surviving parent’s] parental rights.” (Kyle O., supra, 85 Cal.App.4th at p. 863.) “To avoid a facial constitutional challenge, we can only interpret section 3102 to confer upon the blood relatives of a deceased parent standing to seek court ordered visitation. ‘Nothing in the unfortunate circumstance of one biological parent’s death affects the surviving parent’s fundamental right to make parenting decisions concerning their child’s contact with grandparents.’” (Punsly, supra, 87 Cal.App.4th at p. 1106, fn. 6.) Section 3102 has nothing to do with the deceased parent’s “rights,” real or imagined.

4. Conclusion

Pardes had the burden to show the Wienicks’ decision regarding grandparent visitation was not in the grandchildren’s best interests. The evidence he offered to support such a claim was the Wienicks’ hostility toward him over matters unrelated to the interests of the grandchildren, and as the trial judge observed, a “very, very weak” showing of a previous relationship, based mainly on photographs taken while the grandchildren were visiting their mother. Pardes’s testimony regarding what he could and would do for the grandchildren if he were to be given visitation privileges in the future adds little to the nature of the preexisting bond with his grandchildren.

The trial court determined Pardes’s evidence failed to meet the substantial burden of proof he faced to overcome the Troxel presumption. The record demonstrates the trial court considered Pardes’s previous relationship with the grandchildren and the nature of any bond they may once have shared. There was no evidence of an existing bond, nor any evidence the grandchildren desired to visit with Pardes. Pardes’s relationship with the Wienicks is irrelevant for section 3102 purposes.

Pardes’s showing below was not ‘““of such a character and weight as to leave no room for a judicial determination that it was insufficient to support”’” the trial court’s findings of fact and conclusions of law. (Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) This record discloses neither a miscarriage of justice nor an abuse of discretion.

DISPOSITION

The order denying Pardes’s petition for grandparent visitation is affirmed. The Wienicks are entitled to their costs on appeal.

GOETHALS, J.

WE CONCUR:

MOORE, ACTING P. J.

DUNNING, J.*

*Retired Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.