Filed 5/20/20 Ybarra v. Holguin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

RICHARD A. L. YBARRA,

Plaintiff and Appellant,

v.

ROSIE E. HOLGUIN,

Defendant and Respondent.

F079069

(Super. Ct. No. VFL276345)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Tara K. James, Judge.

Richard A. L. Ybarra, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

-ooOoo-

Plaintiff Richard A. L. Ybarra appeals from an order denying his request for visitation with the minor children of his deceased first cousin. The trial court determined plaintiff had no standing to make a request for visitation. On appeal, plaintiff contends Family Code sections 3100 or 3102 should be interpreted to give him standing. As explained below, we conclude those statutes do not provide a first cousin once removed with a right to claim visitation in the circumstances presented.

We therefore affirm the order of the trial court.

BACKGROUND

The questions about standing raised in this appeal are pure questions of law involving the interpretation of sections 3100 and 3102. As a result, much of the factual and procedural background of this case need not be set forth here because that information is not relevant to deciding the legal questions presented.

Plaintiff seeks visitations rights with the three children of his deceased first cousin and defendant Rosie E. Holguin. After his cousin’s death, plaintiff and defendant had a relationship. During that relationship, plaintiff was involved in the children’s lives.

In November 2018, plaintiff, representing himself, filed a request for visitation. In February 2019, the trial court held a hearing on the request and on another matter. After the hearing, the trial court issued an order setting a hearing on defendant’s motion to quash plaintiff’s request and directing plaintiff to file and serve a response.

In March 2019, the trial court held a hearing as scheduled. The court granted defendant’s motion to quash and filed an order stating plaintiff had no standing to make his request for visitation. The same day, plaintiff filed his notice of appeal.

DISCUSSION

I. Section 3100

Plaintiff relies on subdivision (a) of section 3100 as one basis for asserting standing to request visitation rights. That provision states:

“In making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a parent when it is shown that the visitation would be in the best interest of the child, as defined in Section 3011, and consistent with Section 3020. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.” (Italics added.)

In effect, plaintiff is contending he is a person having an interest in the welfare of the children and, therefore, the trial court had the discretionary authority to grant him visitation. We disagree with this statutory interpretation. “[S]ection 3100 applies only when a joint custody order is involved.” (Ed H. v. Ashley C. (2017) 14 Cal.App.5th 899, 912, citing In re Marriage of Harris (2004) 34 Cal.4th 210, 220, fn. 5.) In Ed H., great-grandparents filed a petition for visitation in a postdissolution proceeding. (Ed H. v. Ashley C., supra, at p. 902.) The trial court denied the petition on the ground the great-grandparents lacked standing. (Ibid.) The appellate court affirmed the denial. (Ibid.)

Here, the proceeding did not involve an order for joint custody or any pending custody issues. Therefore, section 3100 does not provide a basis for granting plaintiff visitations rights. (Ed H. v. Ashley C., supra, 14 Cal.App.5th at p. 912.)

II. Section 3102

Plaintiff also relies on section 3102, which provides in part:

“(a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents 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.

“(b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.”

Plaintiff acknowledges that he is not among the relatives specifically listed in the statute, but argues “he should have been allowed to have visitation with the minors because it is in the best interests of the minors.”

In a plurality decision, the United States Supreme Court determined that a Washington state statute authorizing visitation rights to “any person” and “at any time,” if visitation is in the child’s best interest, was unconstitutional because the statute infringed on the fundamental right of parents to make decisions concerning the care, custody and control of their children. (Troxel v. Granville (2000) 530 U.S. 57, 65–67.) If we were to adopt plaintiff’s interpretation of section 3102 and ignore the relatives specifically designated by the Legislature, that interpretation would suffer the same constitutional infirmities as the statute in Troxel. (See Herbst v. Swan (2002) 102 Cal.App.4th 813, 820 [§ 3102, as applied to visitation petition by adult half sister, unconstitutionally infringed mother’s liberty interest in controlling with whom the child associates].) Therefore, we reject plaintiff’s statutory interpretation and conclude the trial court correctly determined he lack standing to seek visitation rights.

In closing, we note that requests for visitation by a first cousin once removed are uncommon. One example is Love v. Rable (2001) 147 OhioApp.3d 63. There, the trial court granted visitation rights to a woman who was the child’s first cousin once removed. (Id. at p. 65.) The appellate court vacated the visitation order, concluding the trial court abused its discretion. (Id. at pp. 68–69.) While not the sole basis for its decision, the court stated “the right of a parent to make decision concerning the care, custody, and control of their child is fundamental. Stanley v Illinois (1972), 405 U.S. 645.” (Love v. Rable, supra, at p. 68.)

DISPOSITION

The order quashing the request for visitation is affirmed.