Filed 8/7/13 Guardianship of A.N. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

Guardianship of the Person of A.N., a Minor.

MICHAEL HOLDSWORTH et al.,                                                         F064141 & F065188

         Petitioners and Respondents,                                   (Tulare Super. Ct. Nos. VPR045374
                                                                                  & VFL218211)
                   v.

JEREMIAH N.,                                                                             OPINION
         Objector and Appellant.



         APPEAL from judgments of the Superior Court of Tulare County. William
Silveira, Jr., Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
         Joan A. Watters for Objector and Appellant.
         Law Offices of Katherine E. Donovan and Katherine E. Donovan for Petitioners
and Respondents.
                                                        -ooOoo-
                                      INTRODUCTION
       After a bench trial, the probate court granted guardianship of minor, A.N., to her
maternal grandparents over her father’s objection. She was six years old at the time. The
court subsequently acknowledged that it relied on inadmissible hearsay and did not
believe there had been “a fair hearing.” The court purported to grant the father’s request
for “reconsideration” (Code Civ. Proc., § 1008) of the guardianship order. The court
ordered another hearing at which the parties were permitted to call witnesses who did not
testify at the initial trial. After this second hearing, the court declined to alter its prior
order granting guardianship. Father appeals from the initial order granting guardianship
after the first trial, and two postjudgment orders regarding attorney fees.
       We conclude that the admission of improper evidence at the initial trial was
prejudicial. We further conclude that the court’s order granting “reconsideration” was in
fact an extrajurisdictional order for a new trial. We therefore reverse the order granting
guardianship.
       We reject father’s attacks on the postjudgment attorney fees orders.
                                            FACTS
                                               A.
                                      GUARDIANSHIP
       Respondents Michael H. and C.H. petitioned the court for temporary and
permanent guardianship of their granddaughter, minor A.N.1 When the petition was




       1 We refer to relatives by their first names only and to the minor by initials only
for privacy purposes. We intend no disrespect.


                                                2.
filed, Objector and Appellant Jeremiah N. (Jeremiah) had legal and physical custody of
A.N.2
        The petition alleged that A.N. was being subjected to physical and emotional
abuse, primarily by father’s girlfriend, S.W.
        The court determined that A.N.’s mother, Elizabeth, consented to the guardianship
request. C.H.’s declaration in support of the petition acknowledged that Elizabeth, her
daughter, “has struggled with drug addiction for the past three years” but indicated that
she had been sober “since June of 2010.”
        C.H.’s declaration stated that A.N.’s teacher had expressed concerns regarding
A.N.’s “ ‘diminishing spirit.’ ” The teacher had referred A.N. to a Special Friends
Program, which allowed A.N. to spend one hour per week with an adult for play time and
conversation. The declaration indicates that S.W. contacted the teacher and told her that
A.N. was no longer allowed to participate in the Special Friends Program. The
declaration states, “As the teacher told my husband that [A.N.] would no longer be
allowed to meet with ‘Special Friends Program’ tears welled up in her eyes.”
Temporary Guardianship Hearing
        On April 28, 2011, the court held a hearing on the request for emergency
temporary guardianship. A.N.’s father, Jeremiah, opposed the petition. He appeared at
the hearing in propria persona and indicated that the petition was “basically all hearsay.”
Both Jeremiah and S.W. testified at the temporary guardianship hearing and denied the
allegations of physical abuse.
        C.H.’s daughter, Erin, is A.N.’s aunt. Erin testified at the temporary guardianship
hearing that she observed bruises on A.N. She asked A.N. how she came to be bruised,
and A.N. replied that it was from a chair. A short time later, Erin again asked A.N. how

        2The court transferred custody of A.N. to petitioners on August 30, 2011. The
record reflects no intervening changes in custody from the time the petition was filed
until August 30, 2011. However, A.N. would spend the night with petitioners sometimes.


                                                3.
she came to be bruised. A.N. eventually said, “ ‘'Okay, don’t tell her but it was [S.W.]’ ”
A.N. explained that S.W. hit her because she had torn up a piece of paper.
       C.H.’s declaration attached to the petition indicates that she then took A.N. to a
police station to make a report. At the temporary guardianship hearing, C.H. testified that
the police officer at the station indicated he would refer the matter to “CPS.” Jeremiah
testified that he spoke to the same officer the day before the hearing. He indicated that
the officer told him that he did not feel there were grounds for a criminal investigation.
The court indicated that it was “interesting” that the matter was not referred to the district
attorney for possible criminal prosecution.
       C.H. testified at the hearing that A.N. had told her that S.W. “pinches,” “spanks”
and “pushes” her. C.H. further recalled that she had spoken to Jeremiah once after
observing a welt on A.N., and asked him to stop. She said Jeremiah indicated it would
never happen again.
       Petitioners’ counsel indicated at the hearing that Jeremiah planned to move to
Oregon with A.N.
       The court then responded to the hearsay objection Jeremiah had made at the
beginning of the hearing. The court stated, “Mr. [N.] said that some of this was hearsay,
but there are exceptions to the hearsay rule and one of the exceptions is a statement by a
child as to her existing state of mind and bodily condition and so I realize that this is
coming from an aunt that the child said it. The child is not here for examination but it is
concerning, but I want you to know that I view it as competent evidence.”
       The court ruled that it had “heard enough to warrant an investigation” and ordered
that one be initiated by the court’s own investigator, Family Court Services. (See Prob.
Code, § 1513, subd. (e).) The court also ordered that A.N. be kept in Tulare County
during the investigation. The court ruled that it could not find irreparable harm or
immediate danger, and therefore denied the petition for temporary guardianship. The
court ordered “no corporal punishment” of A.N., no “disparaging remarks” be made to

                                              4.
A.N. about her parents, stepmother, or grandparents, and no discussion with A.N. about
the “issues of this case.”
       The court appointed an attorney for A.N., Paula Abbiss. The court stated that
A.N.’s counsel “will be directed to consult with the child’s teacher and to determine
whether the teacher viewed it to be in the child’s best interest to remain in the Special
Friends Program or to be withdrawn so she could focus more on her academic needs.…”
The court indicated that there would be a hearing to determine whether Jeremiah had
ability to pay for A.N.’s counsel. The court directed Jeremiah to file an income and
expense declaration for that purpose.
       Petitioners’ counsel requested that A.N. undergo counseling, and Jeremiah agreed.
The court ordered counseling as follows:

       “So, so you [Jeremiah] can enroll her, you consult with Ms. Henson
       [petitioners’ counsel] regarding the therapist. It will be the order, my order
       that this is to be the child’s therapist, not the grandparents’ therapist and not
       the parents’ therapist. It’s to be the child’s therapist and the therapist will
       simply be told that the child is involved in a custody proceeding and that
       she appears dispirited and she’s distractible in school. Okay. That’s all the
       therapist needs to know, nothing more … and number two, that it be a
       therapist who will be willing to provide information to the Court because
       some of them will not.”
       Jeremiah asked whether “they will have contact with the therapist as well as
[A.N.’s] attorney?”3 The court responded, “No, just [A.N.’s] attorney. The only contact
with the therapist will be you to take the child for the appointments. If you don’t have
reliable transportation, then you’re to contact the grandparents and have them transport
her.” Eventually, Janet Hunsaker became A.N.’s therapist.
       The court consolidated the petition with the dissolution proceedings of Jeremiah
and A.N.’s mother, and set a hearing for June 29, 2011.



       3   The “they” in this statement presumably refers to petitioners.


                                               5.
“Move Away” Order Request
       On June 8, 2011, Jeremiah filed an Order to Show Cause requesting an order
permitting him to move to Oregon with A.N. In a supporting declaration, Jeremiah
indicated that he wanted to move to attend the University of Oregon. His employer was
transferring him to Eugene, Oregon.
       Elizabeth opposed the move away order request. In her responsive declaration,
she indicated that she had been sober for over 11 months. She stated that Jeremiah’s
planned move to Oregon did not appear well thought out.
       C.H. also opposed the move away order, indicating that she was devastated that
Jeremiah was considering taking A.N. away. In her declaration, she said, “I have
addressed my concerns to [Jeremiah] about their use of corporal punishment, as well as
them being overly strict with [A.N.]… ” She believed that Jeremiah was not
demonstrating good decision making. She questioned how Elizabeth could rebuild her
relationship with A.N. if the move was allowed. She also believed that S.W.’s “stepping
in to be mom so quickly has had a negative effect on [A.N.].” Michael also opposed the
move away order, expressing concern that A.N. will get attached to another mother-
figure that could abandon her.
       Jeremiah filed a supplemental declaration in support of the move away order. The
declaration explained Jeremiah’s preparation for the move and future plans if the request
was granted. He indicated that A.N. told him that petitioners frequently allow A.N. to be
with Elizabeth unsupervised. A.N. told him Elizabeth had said A.N. does not have to do
what she is told because Jeremiah and S.W. were no longer allowed to discipline her.
A.N. indicated that Elizabeth told her they would be living together soon.
       Jeremiah argued that the petitioners’ different views about discipline were not
relevant. “Their attitude towards parenting is entirely laissez-faire, no boundaries. At
every opportunity they have attempted to portray my daughter as a victim.… Just



                                             6.
because a child is unhappy about being disciplined does not mean they are being abused.
They create excuses for her negative behavior rather than consequences.…”
       The hearing on the move away order was set for July 7, 2011. The parties
stipulated that the petition hearing, previously scheduled for June 29, 2011, would be set
on the same day as the move away order, July 7, 2011. The hearing was continued twice.
Jeremiah withdrew his request for a “move away” order on August 25, 2011.
Initial Guardianship Report
       An initial guardianship report was filed on June 23, 2011, by the superior court’s
investigator, Family Court Services (court’s investigator)
       Jeremiah and S.W.
       The court’s investigator interviewed Jeremiah and S.W. Jeremiah indicated that
he has been living in the home of a friend since May 2011. Jeremiah stated that he
planned to move to Eugene, Oregon with A.N. and S.W. He planned to attend college
and work at an Olive Garden.
       Jeremiah and S.W. denied abusing A.N. and denied engaging in domestic
violence. They reported the bruises on A.N.’s back discussed by Erin were caused when
A.N. fell off an office chair. They stated that they do not spank A.N. and have never left
any bruises on her body. Jeremiah indicated that the petitioners did not have any problem
with his parenting until they became aware that he planned to move to Oregon. Jeremiah
also said that C.H. had told A.N. that she would do anything to prevent them from
leaving for Oregon. Jeremiah stated that the petitioners fail to provide structure for A.N.
when she is at their home, such as an appropriate bed time and hygiene.4



       4  The text of the court investigator’s statement indicates that a “Ms. [N.]” made
this statement. Literally, the moniker “Ms. [N.]” would most accurately describe
Elizabeth N. However, the sentence appears in a paragraph with Jeremiah’s statements.
Elizabeth’s statements are contained under an entirely separate subheading. Moreover,
Elizabeth was supportive of petitioners and would likely not have made this statement.

                                             7.
        S.W. stated that she loves A.N. and would never hurt her. She said that A.N. calls
her “mommy” by choice. She also recalled volunteering in A.N.’s class.
        The court’s investigator toured the home and described A.N.’s room as “a large
spare room which is also the laundry room.” It was clean and organized with a twin bed.
        Elizabeth N.
        Elizabeth N. stated that she has been sober for the past year. She indicated that
she was not ready to have custody of A.N., but that she wanted to be involved in A.N.’s
life.
        Michael H. and C.H.
        The court’s investigator met with petitioners, Michael H. and C.H. Their home
was clean, the refrigerator was stocked with appropriate food items, and there was a room
for A.N.
        C.H. stated that she once saw a bruise on A.N. and talked to Jeremiah “about not
using corporal punishment.” She indicated that Jeremiah said he would never do it again.
Petitioners stated that A.N. has said that Jeremiah “hits his girlfriend in the face.…”
        According to the court investigator’s report, Michael H. and C.H. “stated they are
very concerned the father plans to move with the minor to Oregon.…”
        A.N.
        The court’s investigator interviewed A.N. on June 14, 2011. She was clean and
appropriately dressed for the weather. She said that she loved her dad, her mom S.W.,
her “real” mom, and her grandparents. She stated that she felt safe with her father, S.W.
and her grandparents. She indicated that she had been disciplined in her home by being
spanked with an open hand on her buttocks, but she was no longer spanked “because her




We believe it amply clear that this was a typographical error and should read, “Mr. [N.].”
The attribution of this statement is not dispositive to any issue on appeal.


                                             8.
grandmother told the court.” The investigator observed A.N. interacting with Jeremiah
and S.W. in an appropriate and “loving” manner.
       Kindergarten Teacher
       The court’s investigator interviewed A.N.’s kindergarten teacher. She indicated
that the petitioners had misconstrued her statements about A.N. She told the court’s
investigator that she never saw any signs of abuse towards A.N. by Jeremiah or S.W.
       Criminal History
       The report indicates that a CLETS and SUSTAIN records check was performed as
to Jeremiah and Elizabeth N. Criminal histories were found as to Jeremiah and Elizabeth
N. A SUSTAIN records check was performed as to S.W. and petitioners. No criminal
history was found as to S.W. or petitioners.
       Conclusions
       The court investigator concluded that “the granting of a guardianship petition does
not appear to be warranted or in the minor’s best interest at this time.…” The court’s
investigator recommended that the petition not be granted.
Minor’s Counsel’s Statement
       Minor’s counsel, Paula T. Abbiss, filed a Statement of Issues and
Recommendations with the court on August 24, 2011 (Abbiss’s statement5).
       Petitioners
       Abbiss interviewed petitioners, Michael H. and C.H. Petitioners indicated that
A.N. has resided with Jeremiah for approximately the past 20 months. During that time,
petitioners stated they maintained regular contact with A.N., including providing
transportation to school and “weekend time.” They also indicated that they have
provided financial and transportation-related support for A.N.


       5 We refer to Ms. Abbiss by name to distinguish her from Mr. Minyard who was
later appointed as counsel for A.N.


                                               9.
         Petitioners conveyed that A.N. had told them Jeremiah “hit” S.W. They claimed
that A.N. stated that S.W. “pinches her and hits her.” A.N. told petitioners she got into
trouble with Jeremiah because she received a “warning” at school. As a result, A.N. was
not allowed to play.
         The report states, “Petitioners did confirm during my initial meeting with them
that Mother [Elizabeth] has been spending weekends in their home while [A.N.] was
there, and that she had been sleeping in the room with her unsupervised.…”6 Minor’s
counsel discussed with petitioners “[t]he issue of ‘supervision’ and what that
entailed .…” Minor’s counsel conveyed her concerns to petitioners’ counsel. The report
notes that following these discussions, petitioner C.H. contacted her office “to apologize
and advise that she had located the supervision requirement in the Court’s order and that
she would be abiding by the same.”
         Petitioners also stated that there “was no ill intent” behind the reference to S.W. as
“ ‘the S word.’ ”
         Abbiss notes in her statement that while she was with petitioners outside,
Elizabeth was permitted to go into the house with A.N. Abbiss discussed the issue with
petitioners, who indicated that they did not believe the court’s order prohibited
unsupervised time with Elizabeth. C.H. subsequently contacted Abbiss’s office to
apologize and advise that she had located the supervision requirement in the court’s
order.
         The report states, “Parenting of [A.N.] during this time was also concerning.…”
C.H. gave A.N. an instruction, followed by Michael. Then, Elizabeth “intervened” and
instructed A.N. “somewhat differently.”




         6
        It seems there had been a prior order granting custody to Jeremiah, which
required that A.N.’s visits with Elizabeth be supervised.


                                               10.
       Elizabeth
       Elizabeth indicated that she is not employed and relies on her parents for support.
She wanted to have regular and frequent contact with A.N. She was concerned that S.W.
“still uses corporal punishment.” Elizabeth also indicated that Jeremiah “does not
understand that by moving out of state that he will be taking [A.N.] away from people
that are important to her (her siblings, her mother, her grandparents).”
       Elizabeth told Abbiss that A.N. had asked her, “Mommy what makes you not go
to heaven[?]”7
       Elizabeth stated that A.N. told her that [S.W.] does “really mean things … she
pinches and hits and cuts up pictures.” Elizabeth admitted to sleeping in the same room
as A.N. at petitioners’ house. She also admitted talking to A.N. about the court’s orders
in the case.
       Jeremiah and S.W.
       Abbiss interviewed Jeremiah and S.W. They both denied any physical or verbal
abuse in their relationship. S.W. stated that she has a positive and loving relationship
with A.N.; that A.N. calls her “mommy” on her own accord; and that she volunteers in
A.N.’s class.
       Jeremiah indicated that he disciplines A.N., including taking away toys and
movies, implementing time-outs and, on no more than five occasions, spanking her with
an open hand on her bottom. When asked about the bruises referenced in petitioners’
initial claims in support of the petition, Jeremiah and S.W. recounted A.N. spinning
around on a chair that eventually broke.
       Jeremiah confirmed that petitioners did provide transportation for A.N. during the
2010-2011 school year.



       7The record does not indicate why Elizabeth felt this question from A.N. was
pertinent, nor why minor’s counsel included it in the statement.


                                            11.
       Jeremiah and S.W. indicated that A.N. has returned from visits with petitioners
stating that she was told not to call S.W. “mommy.” A.N. told them that C.H. has her
refer to S.W. as “ ‘the S word.’ ” A.N. also told Jeremiah that Elizabeth lives with the
petitioners. A.N. also conveyed that C.H. told A.N. that Jeremiah is hitting her.
       Jeremiah indicated that he did not believe guardianship was necessary or
appropriate. He stated that his relationship with A.N. was positive and open.
Conversely, petitioners were unable to discipline her and have a history of parenting
failures.
       Confidential Attachments
       Several attachments to Abbiss’s statement were filed confidentially. These
attachments included a letter from therapist Janet Hunsaker addressed to Ms. Abbiss
(Hunsaker letter), and notes of interviews with Jeremiah’s twin daughters and A.N.
Jeremiah was not permitted to view these confidential attachments prior to or during trial.
       Nonconfidential portions of the report summarized the confidential attachments.
We quote the report’s nonconfidential summarization of the confidential material to
avoid inadvertently disclosing confidential material.8
              Hunsaker Letter
       A nonconfidential portion of Ms. Abbiss’s report contained an excerpt from Ms.
Hunsaker’s confidential letter as follows:

              “ ‘[A.N.] is a pretty, blond, blue-eyed, active 6 year old child who is
       currently being torn apart[.] On the one hand, there is the threat that her
       primary attachment figure will be taken from her. On the other hand, it
       appears [S.W.] is in a power struggle for ‘possession’ of [A.N.]. Father
       appears marginalized as he has chosen to acquiesce to her wishes. [S.W.]
       sees herself as [A.N.]’s mother and appears angry that others (the court, the
       grandparents, biological mother, and counselor) are interfering with her
       parenting of ‘her’ child. This is dichotomous [sic] because [A.N.] reported

       8By respecting the confidentiality order, we are not determining its validity or
propriety.


                                             12.
       she feels excluded, marginalized, unloved, unimportant, and the target of
       [S.W.]’s considerable anger. It is unclear why [S.W.] would fight so hard
       to maintain ‘custody’ of a child she has little or no interest in parenting.

              “In short, there are grave concerns about the health, safety, and
       emotional and physical well-being of this child. If the family is allowed to
       move away, [A.N.] is at greater risk of physical and emotional abuse. If the
       family remains in Tulare County, the child remains at risk of physical and
       emotional abuse.’ ”
              Interview of Jeremiah’s Twins
       Minor’s counsel’s report does not summarize the interview of Jeremiah’s twins.
The only record of the interview is minor’s counsel’s notes, which were marked
confidential. The substance of this interview is not dispositive on appeal.
              Interview of A.N.
       A nonconfidential portion of Ms. Abbiss’s report describes her interview with
A.N. as follows:

              “Counsel’s initial interview with minor [A.N.] occurred in counsel’s
       office. A second interview was conducted in the home of Petitioners. Due
       to concerns regarding the safety of said minor, the details of said interview
       will be filed under confidential seal. It is requested that the Court not allow
       dissemination of said report directly to the parties.

             “In summary, [A.N.] expressed fear of [S.W.] and ongoing
       punishment. She stated that she felt like she was always in trouble.
       Despite this stated fear, she was also clear to state that she loves her
       “Mommy, Daddy, Sissies, Grammy and Poppy, and Mommy [S.]

               “During my second contact it was noted that [A.N.] had several
       lesions (which [A.N.] refers to as ‘bites’) all about her body. There were
       red, raised, and scabbed lesions in her hair, at the base of her scalp, on her
       back, on her arms and on her legs. There were scabs falling off in her hair
       and [A.N.] said that she was very itchy and Father and [S.W.] made her
       wear gloves at home so she wouldn’t scratch (even to eat).…

              “[A.N.] thinks that if she moves to Oregon maybe then [S.W.] will
       not be as mad at her all of the time and things will be better. [A.N.] did
       advise me during our last contact, however, that her daddy wasn’t moving
       to Oregon anymore and she would be staying in Exeter with [S.W.] and
       going to school there this year.”

                                             13.
       Conclusions
       Minor’s counsel, Ms. Abbiss, recommended that the petition be granted. She
recommended that A.N. be afforded contact with Jeremiah, but that S.W. not be present
during those contacts. Abbiss expressed concern that “[P]etitioners may allow Mother
unauthorized contact with [A.N.] while she is in their home or not have a clear
understanding of orders made as to visitation.…” She further recommended that
Elizabeth be granted weekly supervised visitation; “said visitation NOT to include
overnights and that Mother’s contact be supervised, not simply in the home of
Petitioners.”

The Initial Trial

       The trial on the petition was held on August 30, 2011. Petitioners’ counsel
indicated that petitioners had not yet attended guardianship orientation, nor had they
completed a “live scan.”
       Before testimony was taken, the court received into evidence the court
investigator’s report filed June 23, 2010, and Ms. Abbiss’s Statement of Issues and
Recommendation filed August 24, 2011. There was a discussion between the court and
counsel regarding home videos Jeremiah intended to offer into evidence. Jeremiah’s
counsel made an offer of proof and the court ruled:

       “… Now then I will consider them and I will consider them on this basis,
       the Court has been given hearsay statements by way of reports of minor’s
       counsel and declarations filed by the Petitioners that the child expresses
       fear of her father and her stepmother.”9
       The court continued its ruling, stating:

       “[T]he Court realizes that the things that the child has told Ms. Hunsaker
       [A.N.’s therapist] and Ms. Abbiss [minor’s counsel] and possibly the
       grandparents [petitioners] are hearsay, the Court tends to allow evidence of

       9At this point, petitioners’ counsel objected to calling S.W. “stepmother.” A brief
colloquy ensued before the court continued its ruling.


                                             14.
       those statements as evidence of the child’s state of mind which is evidenced
       in these proceedings and on that basis the Court believes it’s appropriate
       that I allow these DVD videos that were taken of the child interacting with
       … [Jeremiah] and [S.W.] and her step siblings.”
       Jeremiah’s counsel then objected to Ms. Hunsaker’s letter on the basis of
bias. He stated that Jeremiah observed petitioners remaining in the clinical setting of
A.N.’s sessions with Hunsaker. The court did not sustain the objection, but stated:
“[Y]ou have a right to subpoena her here and cross-examine her and if you wish to do
that I will continue this hearing briefly for those purposes.” Jeremiah’s counsel replied,
“We’ll submit on what’s been offered.”
       The court received the confidential reports attached to minor’s counsel report.
The court permitted Jeremiah’s counsel to review the confidential report, but Jeremiah
himself was not permitted to see them.
       The court viewed home videos submitted by Jeremiah.
       Jeremiah testified that S.W. drives A.N. to her school, approximately 2.3 miles
from his home. The court questioned Jeremiah on how A.N. came to sustain mosquito
bites. Jeremiah testified that he took her hiking in the Kaweah Oaks Preserve and
Sequoia National Park. He testified that he treats the bites with hydrocortisone cream
and a triple antibiotic cream. The court noted that there are topical preparations that can
prevent mosquito bites, and Jeremiah responded that he uses “deet.” He further testified
that A.N. would scratch her bites frequently, causing cellulitis. The court asked whether
he continued to take A.N. on trips after she was exhibiting lesions, to which Jeremiah
responded: “We haven’t gone on one in a few weeks now. We let them heal.” C.H.
testified that A.N. had insect bite scars on her arms, legs and back of her neck. They
were in different stages of healing, and she also had fresh bites.
       Jeremiah testified that they were living in a home at the time of the hearing. The
woman that owned the home was allowing Jeremiah to stay there rent-free.




                                             15.
Trial Court’s Decision to Grant Guardianship
       The court announced its decision to grant the petition immediately after closing
arguments. The court found that Jeremiah does not “take into consideration the child’s
emotional needs and welfare.” First, the court found that Jeremiah was planning to move
to Oregon “without considering the effect of that move on the child.” The court also
stated, “I do believe that there is domestic violence in this house, it has been reported of
the arguments that [Jeremiah] gets into with [S.W.] and including, including physical.”
The court found that Jeremiah “has permitted [S.W.] to assume parenting responsibilities
for this child that are not appropriate .…” The court stated its belief “that some of the
discipline imposed here has caused the child to be very fearful of him and [S.W.] and this
has come out pretty strongly in her interviews – in her counseling with Ms. Hunsaker as
well as her interview with Ms. Abbiss.” The court stated it was “concerned that there has
been some neglect” that was “not serious” and “not enough alone to find detriment.”

       “But, when this evidence, when considered in its totality … rises to the
       level of detriment in this Court’s opinion. She has shoes that are ill fitting.
       She has mosquito bites that have given rise to a serious medical condition
       and I have concern about this. Because I know what it’s liked [sic] to be
       raised around mosquitos. I lived on ranches when I was a child, there was
       no mosquito control, we’re talking late 40’s, early 50’s, but we did not and
       I realize that the child can be especially sensitive to mosquitos, I realize
       that, but I have what is reported here regarding that child’s medical
       condition reflects a lack of appropriate steps to prevent her exposure. If a
       child is reflecting these kind of reactions to mosquito bites, the answer is
       not to continue going to the Kaweah Oaks Preserve or places in the parks
       where there are mosquitos. The answer is to keep her away from
       mosquitos. That wasn’t done.”

       “[S]o all of these factors that I cited and as cited in Ms. Abbiss’[s] report
       lead the Court to believe that it would be detrimental for this child to
       remain in the custody of her parents.”
       The court ordered that Jeremiah “will have the right to visit with this child at
reasonable times and places and Ms. Abbiss has made suggestions that those visits take
place other than in [S.W.’s] presence, so that will be my order. And he may visit with her

                                             16.
one day a week, a day of his choosing when she’s not in school. He needs to work this
out with the [petitioners].”
       The court ordered that Elizabeth was not permitted to sleep with A.N. nor was she
to supersede petitioners’ “directives.” The court ordered that Elizabeth could have
unsupervised visits with A.N. for “two hours.”
       The court ordered:

               “There will be no corporal punishment by anybody in this trial and,
       further, no one is to discuss the evidence that was discussed by the Court
       nor revealed in minor’s counsel report nor by Ms. Hunsaker. So there will
       be no discussion of that with this child and if I find that it happens, I’ll find
       that it would be extremely detrimental for any adult to do that .…”
       The court ordered that a review hearing occur on October 11, 2011, to ensure that
the petitioners completed guardianship orientation and Live Scan requirements.
Jeremiah’s Motion for Reconsideration
       On September 9, 2011, Jeremiah filed a “Motion for Reconsideration and/or Set
Aside of Order Granting Petition for Guardianship” under sections 473 and 1008 of the
Code of Civil Procedure. The motion was made on the grounds that (1) petitioners failed
to complete a background check or attend guardianship orientation; and (2) no
“investigation was undertaken” regarding Elizabeth N. The hearing date was originally
set for October 5, 2011.
September 12, 2011, Ex Parte Application for Stay of Order
       On September 12, 2011, Jeremiah filed an ex parte application to stay the court’s
order granting petitioners’ guardianship over A.N. The purpose of the request was to
allow Jeremiah “a meaningful opportunity to challenge the orders [granting guardianship]
made in this Court and, if necessary, in the Court of Appeal.” The court denied the
application in an order also dated September 12, 2011. The court concluded that
Jeremiah failed to make a sufficient showing of irreparable harm, immediate danger or




                                              17.
other statutory basis for ex parte relief. The court further noted that a hearing on the
merits of the underlying motion was set for 23 days later, on October 5, 2011.
Request to Disqualify Judge Silveira
       There is an indication in the record that Jeremiah filed a request to disqualify
Judge Silveira on September 23, 2011. The request itself is not included in the record.
The request was apparently denied in an order dated December 1, 2011.
Jeremiah’s Supplemental Filings RE: Motion for Reconsideration
       On September 13, 2011, Jeremiah’s counsel filed a supplemental declaration,
presumably in support of his motion to reconsider.10 The declaration stated that
Elizabeth was taking a drug called Buprenorphine. The declaration raised the possibility
of A.N. accidentally and fatally ingesting the drug during unsupervised contact with
Elizabeth. A correspondence from Jeremiah’s counsel to petitioners’ counsel was
attached to the declaration. The letter conveyed these concerns at greater length to
petitioners’ counsel.
       Jeremiah’s counsel filed another supplemental affidavit on September 15, 2011.
The affidavit contended Child Welfare Services (CWS) records favorable to Jeremiah
were “not available at time of trial.” The affidavit described the CWS records as
contradicting minor’s counsel’s report in a couple respects. Minor’s counsel’s report
indicated A.N. denied any abuse to CWS, but then undermined that determination by
claiming that CWS interviewed A.N. “while in the care of her Father.” The affidavit
indicates that CWS records showed that A.N. was interviewed at school, entirely outside
of Jeremiah’s presence. Jeremiah’s affidavit does not explain why these CWS documents
were “not available at time of trial.”



       10The declaration does not explicitly state that it was made in support of that
motion, but it does include the scheduled date and time for the hearing on the motion to
reconsider.


                                             18.
       On September 22, 2011, in opposition to Jeremiah’s motion for reconsideration,
C.H. and Michael H. each filed separate declarations, a joint responsive declaration, an
opposition/memorandum of points and authorities, and exhibits.
       On September 27, 2011, Jeremiah filed a document entitled “Reply Declaration”
that was, in substance, a memorandum of points and authorities. On October 3, 2011,
Jeremiah filed a supplemental declaration “in support of application for rehearing.” On
the same day, he filed a document entitled “Augmentation of Record; Due Process
Argument.” Petitioners filed a request to strike each of these three documents. They
argued that the “Reply Declaration” exceeded the 10-page limit set forth in Tulare
County Superior Court Local Rules, rule 902(a). Petitioners also contended that all three
filings violated Code of Civil Procedure section 1005, subdivision (b) requiring replies to
be filed and served five court-days prior to the hearing.
       A minute order reflects that a hearing did take place on October 5, 2011. The
order notes that Judge Silveira had a pending disqualification request under Code of Civil
Procedure section 170.1. Thus, the matter was continued to December 6, 2011, for a case
management conference.
       On October 6, 2011, Jeremiah filed an objection to petitioners’ request to strike his
reply papers.
September 19, 2011, Ex Parte Application
       On September 19, 2011, Jeremiah filed an ex parte application requesting court
orders: (1) suspending unsupervised visits between Elizabeth and A.N.; (2) requiring that
visits between Elizabeth and A.N. be supervised by persons other than C.H. and Michael
H.; (3) revoking the prior order granting guardianship; (4) requiring Michael H. and C.H.
to attend mandated guardianship orientation and fingerprinting; (5) a continuance until
Michael H. and C.H. complied with alleged fingerprinting requirements; (6) imposing
monetary sanctions against Michael H. and C.H.; (7) ordering Family Court Services to
confirm that Michael H. and C.H. complied with Local Rule 1007 and file a supplemental

                                            19.
report regarding the results of their fingerprinting; and (8) dismissing “the matter” in its
entirety. The face sheet of the application indicates a hearing date of September 20,
2011.
        An order dated September 20, 2011, indicates that a matter was brought before the
court for ex parte hearing. The matter was taken under submission and the order
indicates that the court would review the “Mark G vs John G case.”11
        Jeremiah’s counsel filed a letter brief the following day, along with a proposed
order, a legal article, and a copy of In re Guardianship of Christian G., supra, 195
Cal.App.4th 581.
        The court ultimately denied the ex parte application. In its ruling, the court found
that the application did not present matters proper for ex parte relief. The ruling stated:
“Virtually all of the information presented was either considered by Judge Silveira at the
time he heard the guardianship matter or was available to the parties for presentation at
that time, including the recently submitted case authority.” The ruling concludes, “There
is a pending motion for reconsideration before Judge Silveira at which these matters may
be fully considered in a more appropriate procedural manner and where all parties will
have an opportunity to be heard.”
CWS Referral and November 3, 2011, Ex Parte Application
        In orders dated October 14, 2011, and October 20, 2011, the court referred the
matter to CWS for an investigation pursuant to Probate Code section 1513. On
November 3, 2011, Jeremiah filed another ex parte application, again requesting that the
court vacate the order granting guardianship until the Probate Code section 1513
investigation was completed. A minute order reflects that the court denied the
application, as it was “not an emergency hearing.”


        11
        Presumably a reference to Guardianship of Christian G. (2011) 195
Cal.App.4th 581.


                                             20.
CWS Report
       On November 22, 2011, CWS filed its report pursuant to the court’s referral. The
report included a description of an interview with A.N. In the interview, A.N. said that
S.W. “was mean to her, would yell at her, ground her when she got in trouble and would
hit her.” She described an incident where S.W. spanked her, which “ ‘really hurt and left
a bruise.’ ”
       She said that S.W. and Jeremiah would yell at each other, but she had never seen
them become physically violent. She said that S.W. was never physically abusive
towards her, “such as hitting, slapping, or pinching.”
       When asked about the time she had a bruise on her back, she said she did not
remember or know, but that she thought she fell off a chair. When asked where she
wanted to live, she said she wanted to live with her maternal grandparents but wants to
continue visiting with Jeremiah. She said she did not wish to visit with S.W.
       The report concluded that there was “no evidence to support that the child has
been abused or neglect [sic] while in the care and custody of the father as defined by the
Penal Code .…” The report indicated that CWS would not be filing a petition in juvenile
court, and that the child was safe with her current guardians.
December 6, 2011 Hearing
       The record contains a minute order from a December 6, 2011, hearing. The court
set a briefing schedule for the attorney fees requests and the motion for reconsideration.
A further hearing was set for January 17, 2012.
Miscellaneous Filings
       On December 21, 2011, S.W. filed a declaration describing what she had learned
in parenting classes. On December 22, 2011, Jeremiah filed an ex parte application for
an order unsealing minor’s counsel’s report, permitting S.W. to be present during
Jeremiah’s visits with A.N., and clarifying the time, place and duration of Jeremiah’s
visits. The application was granted, “in part.” The court’s order on the application

                                            21.
“allow[s] the Report’s [sic] of Minor Counsel to be provided to the Respondents [sic]
Counsel.”12 The court also ordered that the parties were not allowed to discuss the
reports with “the children.” The order set a status hearing for January 4, 2012.
       On January 3, 2012, Jeremiah filed a document entitled “Brief in Response to the
Court’s Suggestion for Stipulation and Order for New Trial and Child Custody
Evaluator.” The brief indicated that an in camera meeting between the court and counsel
for both parties had occurred on December 22, 2011. It further indicated that the court
asked the parties to consider a stipulation and order granting a new trial. The brief
argued that a motion for new trial was not available, pursuant to Probate Code section
1453. A January 4, 2012, minute order states that the court “strikes” the brief filed by
Jeremiah’s counsel, but permits the brief to be resubmitted as an attachment to another
brief due on January 17, 2012. The court vacated the January 17, 2012, hearing and reset
it for February 8, 2012.
Hearing on Motion for Reconsideration13
       The hearing on the motion for reconsideration was held February 8, 2012. The
court announced its tentative decision to grant reconsideration. The court stated:

              “The tentative decision is going to be to reconsider this matter. I am
       reconsidering it on the basis that I believe that the decision I made was

       12This ruling is confusing, considering that the court had already permitted
Jeremiah’s counsel to view the report.
       13 A successful motion for reconsideration usually results in two rulings: (1) the
decision to grant reconsideration (i.e., the decision to reconsider the matter); and (2) the
decision after reconsideration (i.e., the decision to affirm the court’s prior substantive
ruling or the decision to change it). (E.g., San Francisco Lathing, Inc. v. Superior Court
of San Francisco (1969) 271 Cal.App.2d 78, 84 [court grants motion for reconsideration,
then reaffirms its prior substantive ruling].) Here, there was a hearing on whether to
grant reconsideration on February 8, 2012. We refer to this as the “hearing on the motion
for reconsideration.” The court granted the motion, and set a further evidentiary hearing
to decide whether it would change or affirm its prior substantive ruling granting the
petition. We refer to this later hearing as “the rehearing.”


                                            22.
       based on a great deal of hearsay evidence, which was formerly admissible
       in family law proceedings but has not been since 2010. It’s also the law
       that any evidence that isn’t objected to can be considered by the Court;
       nonetheless, we are talking about a fundamental right of a parent to have
       custody of a child. And I don’t believe under the circumstances that there
       was a fair hearing and that I could fairly consider all the evidence. So I
       intend to reopen the hearing to allow cross-examination of the witnesses
       and presentation of new witnesses. [¶] This case presents a number of
       procedural difficulties and so I want to make it clear that this order is part
       of my reconsideration. In other words, I will reconsider by hearing
       additional evidence and having witnesses cross-examined and then I will
       issue a final decision about the order I made granting the guardianship. So
       I view this as part of the reconsideration process and that’s my ruling.”
       The court indicated that it would issue a written ruling on the motion in the future.
       The court declined to vacate the prior order granting guardianship. The court
continued, stating:

               “So we have – so we have to examine that evidence and you can, if
       you wish, present these children, his daughters as witnesses, I will consider
       that testimony, you can subpoena any other witnesses you wish. But I’m
       going to – I view this as a matter in which I have to take testimony from
       witnesses and have them cross-examined and then I will issue my final
       decision.”
       The court appointed new counsel for A.N. and set a case management conference
for February 21, 2012.
Case Management Conference – February 21, 2012
       At the case management conference on February 21, 2012, the parties and the
court discussed the nature of the anticipated “reconsideration” hearing. The court
indicated that its statement of decision was completed but still had to be reviewed by the
staff attorney. The court confirmed that the written ruling would grant the motion to
reconsider.
       Petitioners’ counsel indicated that she received deposition notices for Erin H.,
“Mrs. [H.]”14 and Janet Hunsaker. She expressed concern about the scope of discovery

       14   Presumably, petitioner C.H.


                                             23.
Jeremiah was undertaking. Jeremiah’s counsel asked what the court envisioned as the
scope of the rehearing. The court reviewed its statement of decision on the motion for
reconsideration, and stated:

       “I noted that on the record February 8th I ordered a hearing with
       opportunity to cross-examine witnesses regarding evidence considered by
       the Court at the guardianship hearing and to present witnesses in rebuttal of
       the witnesses who are named in written reports considered by the Court at
       the guardianship hearing. So I envision at this hearing that.”
       The court later stated, “[T]his is a hearing on the motion to reconsideration [sic],
not a whole new hearing.”
       Jeremiah’s counsel asked, “So the Court is limiting the testimony to what could
have occurred on August 30th; is that correct?” The court responded, “Exactly.” The
court continued, “I will simply after hearing all that decide upon reconsideration of all the
evidence whether there is – whether I should enter a different decision.”
       The court stated, “[W]e are dealing with an issue that deals with fundamental
rights of a parent under the constitutional law to parent their own child. The Court can
only remove a child when there’s sufficient showing of detriment. There was a showing
of detriment based on those statements contained in the report and he didn’t have an
opportunity to cross-examine the witnesses.”
       The court stated it would allow A.N., Ms. Hunsaker, and Jeremiah’s twin
daughters to be called as witnesses at the retrial.
       Petitioners’ counsel questioned whether the court would consider the Abbiss
report at the rehearing. The court responded, “No, I can’t consider Ms. Abbiss’[s] report.
Mr. Minyard is going to have to prepare a new – I can’t consider Ms. Abbiss’[s] report
because of the defects in the report. I’m not going to.”
Motion for Increased Visitation
       On March 5, 2012, Jeremiah moved for an order for increased visitations and to
permit S.W. to be present at visitations with A.N. Jeremiah filed a declaration in support


                                              24.
of the motion, indicating that he had attended joint counseling with his twins for five
months. S.W. had eventually begun attending the sessions as well. Petitioners opposed
the motion. The motion was initially heard on March 27, 2012. The parties were
referred to counseling, but there was no resolution. The court set a contested hearing on
the matter to coincide with the rehearing on the petition for guardianship.
March 8, 2012, Hearing
       On March 8, 2012, there was an ex parte hearing initially intended to resolve a
discovery dispute. After discussing the discovery dispute, the parties and the court
discussed other issues of the case.
       The court verbally ruled that it was allowing Ms. Hunsaker’s report into evidence
“subject to cross-examination .…”
       The court and counsel also discussed the burden of proof at the rehearing.

               “MR. LONG [Jeremiah’s counsel]: -- my first question is who has
       the burden of proof that day to carry, is it us or is it them? That would be
       my first question and then second is, are they going to be required, once
       that report is out and the Court has already said on the record that that
       report was very influential in the Court’s decision, so are they going to have
       to present evidence on April 17th that is clear and convincing so that our
       job is to refute it or is our job to refute it like the Court’s already setting it
       and we have to tear it down?

              “MS. SMITH-HENSON [Petitioners’ counsel]: The burden shifts.

              “THE COURT: What?

               “MS. SMITH-HENSON: I believe the burden shifts. We had clear
       and convincing burden to get the guardianship. Now we’re not doing a new
       trial, we’re not presenting new evidence, you’re only making a decision
       based upon the new evidence whether or not you made an error. I don’t
       believe I have a burden of clear and convincing again. I believe they have a
       burden to prove –”

               “MR. LONG: If that’s the case and, Your Honor, we throw out that
       report, then she couldn’t carry her burden.

              “MS. SMITH-HENSON: Well I may be able to.
                                              25.
              “THE COURT: My view is that – that I cannot consider Ms.
       Abbiss’[s] report absent a stipulation that it come in and that they may then
       present evidence through cross-examination of hostile witnesses to refute it
       because that was not possible at the hearing the way it went down. So yes,
       they would have the burden of going forward and asking me to
       reconsider .…”
       Following the hearing, the court issued a written order. The court ordered that if
anyone desired to call A.N. as a witness, the court would address that issue before the
April 17, 2012, retrial pursuant to California Rules of Court, rules 5.119 and 5.250,
Family Code section 3042, and Evidence Code section 765. The court further ordered
that questioning of any other children under the age of 14 would be subject to Evidence
Code section 765. The order also stated that the court would not receive the Abbiss
report into evidence at retrial, but would consider the statements of witnesses presented in
that report “if proper foundation is laid under the Evidence Code .…”
Rehearing
       The rehearing began on April 17, 2012. The reporter’s transcript of the rehearing
is not part of the appellate record, but the court’s ruling after the rehearing is. In the
order, dated May 15, 2012, the court “denied” the “request to modify and change the
current visitation order .…” The court found “the evidence that has been presented
during the hearing of this application further supports the Court’s original findings.” The
order states:

               “After an 8 day hearing this Court has heard no evidence or been
       cited to any law that would lead this Court to determine that the Order
       Appointing Michael [H.] and [C.H.] as Guardians of [A.N.] should be
       rescinded .…”

                                              B.
                            ATTORNEY FEES / SANCTIONS
       On May 11, 2012, petitioners moved for sanctions under Family Code section 271.
Jeremiah opposed the motion, and filed his own motion for attorney fees and costs under


                                              26.
Family Code section 2030 and In re Guardianship of Paduano (1989) 215 Cal.App.3d
346.
June 4, 2012, Order
       In an order dated June 4, 2012, the court granted Jeremiah’s request for attorney
fees and costs under Family Code section 2030. Jeremiah had requested $98,707.00 in
attorney fees, and $6,354.40 in costs. The court granted $10,975.00 in fees. The 23-page
order describes Jeremiah’s line item requests, and indicates whether each request for fees
was granted in whole or in part, or was denied.
June 11, 2012, Order
       In an order dated June 11, 2012, the court granted petitioners’ request for Family
Code section 271 sanctions against Jeremiah. The court ruled that, under Guardianship
of Paduano, supra, 215 Cal.App.3d 346, Family Code section 271 sanctions were
available because the probate proceedings had been consolidated with family law
proceedings. The trial court found that Jeremiah and/or his attorneys had set unnecessary
ex parte hearings, filed an unmeritorious writ to this court, filed an unsolicited brief,
lodged inappropriate accusations against petitioners, improperly attempted to influence
witnesses, and conducted unnecessary depositions. The court sanctioned Jeremiah in the
amount of $7,000 to be “set off against the amount of fees he was awarded under Family
Code Section 2030 on June 4, 2012.”
                                        ANALYSIS
                                              I.
   THE COURT ERRONEOUSLY CONSIDERED INADMISSIBLE HEARSAY
                         EVIDENCE
       We first address Jeremiah’s contention that the court relied on inadmissible
hearsay at the initial trial on August 30, 2011.
       Generally, unless otherwise permitted by law, hearsay is not admissible in
guardianship proceedings. (Evid. Code §§ 300, 1200; Prob. Code § 1000; see also In re


                                             27.
Guardianship of Akers (1920) 184 Cal. 514, 520; In re R.S. (1985) 167 Cal.App.3d 946,
970-971; In re Guardianship of Sturges (1939) 30 Cal.App.2d 477, 491; In re
Guardianship of De Brath (1937) 18 Cal.App.2d 697, 704.)
       Respondents’ brief does not dispute that, at the initial trial, the court relied on
inadmissible hearsay, including statements in Ms. Abbiss’s Statement of Issues and
Recommendations. Understandably so, given that the trial court itself later characterized
the evidence as inadmissible hearsay, stating: “I am reconsidering [the grant of
guardianship] on the basis that I believe that the decision I made was based on a great
deal of hearsay evidence, which was formerly admissible in family law proceedings but
has not been since 2010.” 15 Rather, respondents contend that Jeremiah waived the
hearsay objection by failing to raise it in the trial court.
       The general rule is that the complaining party must make a timely and meaningful
objection in the trial court to preserve an evidentiary issue for appeal. (People v. Carrillo
(2004) 119 Cal.App.4th 94, 101.) But, the duty to object will be excused when an
objection would have been futile. (Ibid.) For example, when the trial court considers and
rules on an evidentiary issue as if an objection had been properly made, appellate review
is permitted. (People v. Frank (1985) 38 Cal.3d 711, 738, citing People v. Abbott (1956)
47 Cal.2d 362, 372-373.)


       15 Prior to December 31, 2010, Family Code section 3151, subdivision (a)
provided, in part: “The role of the child’s counsel is to gather facts that bear on the best
interests of the child, and present those facts to the court .…” Even if this prior version
of the statute could be read to trigger the, “except as provided by law” clause of Evidence
Code section 1200, subdivision (a), it has since been amended. Effective January 1,
2011, Family Code section 3151, subdivision (a) now reads, in pertinent part: “The role
of the child’s counsel is to gather evidence that bears on the best interests of the child,
and present that admissible evidence to the court in any manner appropriate for the
counsel of a party.…” (Fam. Code, § 3151, subd. (a), italics and underline added.) Thus,
Family Code section 3151, subdivision (a) does not render hearsay admissible merely
because it is conveyed by child’s counsel.



                                               28.
       Here, the court voiced its thoughts on the admissibility of the minor’s counsel
report before any hearsay objection was made. While ruling on another evidentiary issue
at trial, the court digressed: “[A]nd the Court realizes that the things that the child has
told Ms. Hunsaker [child’s therapist] and Ms. Abbiss [minor’s counsel] and possibly the
grandparents [petitioners/respondents] are hearsay, the Court tends to allow evidence of
those statements as evidence of the child’s state of mind which is evidenced in these
proceedings .…” Thus, the court discussed the evidentiary issue as though an objection
had been made, and we will review the erroneous admission on appeal. (See People v.
Frank, supra, 38 Cal.3d at p. 738.)
                                              II.

                 THE TRIAL COURT’S ERROR WAS PREJUDICIAL
       Even though the erroneous admission of hearsay evidence is preserved for appeal,
we still must determine whether the error was prejudicial. (Evid. Code, § 353, subd. (b)
[no reversal on erroneous admission of evidence absent “miscarriage of justice”].) When
reviewing the erroneous admission of hearsay evidence, we employ the Watson16
harmless error test. (People v. Garcia (2008) 168 Cal.App.4th 261, 292.) That is, we
must determine whether it is “reasonably probable” that Jeremiah would have obtained a
more favorable judgment if the court had excluded the evidence. (See ibid.)
“ ‘ “[P]robability” in this context does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.’ [Citation.]” (Cassim v. Allstate
Ins. Co. (2004) 33 Cal.4th 780, 800, italics in original.)
       Our task is greatly simplified by the unusual state of the record before us. At the
February 21, 2012, hearing on the motion to reconsider, the finder-of-fact itself (i.e., the
trial court) said: “[W]e are dealing with an issue that deals with fundamental rights of a
parent under the constitutional law to parent their own child. The Court can only remove

       16   People v. Watson (1956) 46 Cal.2d 818 (Watson).


                                             29.
a child when there’s sufficient showing of detriment. There was a showing of detriment
based on those statements contained in the report .…” (Italics added.) At the February
8, 2012, hearing, the court stated: “… I believe that the decision I made was based on a
great deal of hearsay evidence,… And I don’t believe under the circumstances that there
was a fair hearing and that I could fairly consider all the evidence.…”
       We need not speculate on the role the hearsay evidence played in arriving at the
judgment. The trial court’s statements indicate “with much certainty that the evidence
erroneously admitted contributed materially to, if it did not entirely control, the
conclusion of the trial court, ultimately expressed in its findings,…” (In re Guardianship
of Akers, supra, 184 Cal. at p. 521.) “It follows necessarily that the error in this particular
warrants and requires a reversal of the order” (ibid.) unless we accept respondents’
remaining contention that prejudice was “negated” by the order granting a rehearing.
       As we will explain in section III, post, the court’s February 22, 2012, order was an
order for a new trial (Code Civ. Proc., § 656), not an order granting reconsideration
(Code Civ. Proc., § 1008). In the subsequent section (§ IV, post), we explain why the
trial court had no authority to make such an order.
                                             III.
       THE TRIAL COURT’S FEBRUARY 22, 2012, ORDER CONSTITUTED AN
             ORDER FOR A NEW TRIAL, NOT RECONSIDERATION
       Respondents argue that trial courts can reconsider and change an earlier ruling
even if such reconsideration is not based upon a change in law. (Case v. Lazben
Financial Co. (2002) 99 Cal.App.4th 172, 178-179.) But, that is not what the court did
here; it ordered a new trial.
       Reconsidering a prior order and granting a new trial are separate concepts.
(Compare Code Civ. Proc., §1008 with Code Civ. Proc., §§ 656-657.) The former occurs
when the court “reconsider[s]” a “matter” (Code Civ. Proc., § 1008, subd. (a)) while the
latter is a “re-examination of an issue of fact.” (Code Civ. Proc., § 656.)


                                             30.
       In determining the true nature of the February 22, 2012, order, we look to its
effect, not its label. “ ‘The true measure of an order … is not an isolated phrase
appearing therein, but its effect when considered as a whole.…’ ” (Concerned Citizens
Coalition of Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 77, italics added.)
Thus, an order purporting to grant reconsideration may in fact be an order for a new trial.
(See In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1470 (Herr).)
       The Court of Appeal encountered a similar situation in Herr, supra, 174
Cal.App.4th 1463. In Herr, there was a trial on various contested issues including child
custody, support and arrearages. At the close of trial, the court announced its ruling from
the bench. One of the parties moved for reconsideration and, in the alternative, for a new
trial. At a subsequent hearing, the court granted reconsideration on its own motion, and
set the matter for a further hearing. The court indicated that the matters previously
resolved at trial would be revisited and the parties would present new evidence at the
anticipated hearing. The Herr court reversed the order granting “reconsideration,”
determining that it was, in fact, an order for a new trial.
       As the Court of Appeal explained:

             “[The trial court’s] order purported to grant ‘reconsideration’ for the
       express purpose of conducting a further hearing or trial, at which the parties
       would be expected to produce new and ‘competent’ evidence .…

              “This was no reconsideration: it was the grant of a new trial. The
       effect of granting a new trial is ‘ “a re-examination of an issue of fact.” ’
       [Citations.] In expressly rejecting as unreliable or inaccurate evidence
       adduced at the first trial, the court’s order that the parties be prepared to
       submit new, competent evidence has all of the indicia of a reexamination of
       issues of fact. Whatever the court called it, the order was for a new trial.”
       (Herr, supra, 174 Cal.App.4th at p. 1470, italics added.)
       The trial court’s order in the present case can be described in largely the same
fashion. The order states, in part, “this Court is granting Jeremiah [N.’s] motion for
reconsideration, and setting a [sic] evidentiary hearing to reconsider this court’s


                                              31.
appointment of guardianship,…” The order states that the purpose of the further
“evidentiary hearing” was:

          “[S]o that this Court may take further evidence on the petition of Michael
          [H.] and [C.H.] to be appointed guardians of [A.N.] At such hearing the
          moving party (Jeremiah [N.]) may call as a witness any person whose
          statements were considered by the Court in reports before the Court who
          were not cross-examined at the hearing. He may also present new
          witnesses to controvert any factual allegation presented in those reports.
          The guardians may likewise call any witnesses who did not testify but
          whose statements were made part of any reports considered by the Court
          and may call witnesses in rebuttal to any testimony presented by witnesses
          called by the moving party, Jeremiah [N.]” (Italics added.)
          We find it amply clear that this order contemplates a “reexamination” of issues of
fact. (Code Civ. Proc., § 656.) The order “has all of the indicia of a reexamination of
issues of fact” including the anticipation of new evidence at the rehearing. (Herr, supra,
174 Cal.App.4th at p. 1470.) That is, the court’s order “purported to grant
‘reconsideration’ for the express purpose of conducting a further hearing or trial, at which
the parties would be expected to produce new … evidence.” (Ibid.)
          In sum, the court’s “reexamination of factual issues does not fall under the rubric
of ‘reconsideration.’ It is a new trial.…” (Herr, supra, 174 Cal.App.4th at p. 1465.)
And, as we will explain, “the trial court here had no authority to order a new trial,…”
(Ibid.)
                                               IV.
          THE COURT LACKED JURISDICTION TO ORDER A NEW TRIAL
          “The power of the trial court to grant a new trial may be exercised only by
following the statutory procedure and is conditioned upon the timely filing of a motion
for new trial,…” (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899.) A trial
court may not order a new trial on its own motion. (Ibid.)
          These rules operate to unique effect here. In probate proceedings, a party may
only move for a new trial in cases where the right to a jury trial is expressly granted by


                                               32.
Division 4 of the Probate Code. (Prob. Code, § 1453.) Division 4 does not expressly
grant a right to a jury trial in the probate guardianship proceedings that underlie this
appeal. (See Prob. Code, § 1452.) Therefore, the parties were statutorily prohibited from
moving for a new trial. (Prob. Code, § 1453.)
       Since the court’s authority to order a new trial was conditioned upon a motion that
could not be made, it had no jurisdiction to order a new trial. (Cf. Estate of Van Deusen
(1947) 30 Cal.2d 285, 292.)17
       Thus the court’s order for a new trial did not negate the prejudice from the first
trial’s errors, it simply “replaced one error with a different error.” (People v. Felton
(2004) 122 Cal.App.4th 260, 271.) An extrajurisdictional order for a new trial is void and
“ ‘remains without effect completely as if never entered.’ ” (Peters v. Anderson (1931)
113 Cal.App. 158, 160, italics omitted.)
                                             V.
                                         REMEDY

    ONLY REVIEWING COURTS MAY ORDER NEW TRIALS IN THIS
  CONTEXT, NOTWITHSTANDING ANY PROCEDURAL INEFFICIENCIES
                    THE RULE CREATES
       An argument could be made that if the trial court recognizes a trial error, it should
be able to correct it through a new trial without the necessity of an appeal. Perhaps, but it
is not our role to evaluate whether the Legislature could have designed a more efficient
system. We do not determine what the Legislature should have done, but rather what it
has done. “Our limited role in interpreting statutes is to follow the Legislature’s intent as
exhibited by the plain meaning of the statutory language, whatever we may think of the
wisdom, expediency, or policy underlying the act. [Citations.]” (Bradley v. Breen (1999)
73 Cal.App.4th 798, 806.)

       17 Reviewing courts, however, do have statutory authority to order new trials in
this context. (Prob. Code, § 1000; Code Civ. Proc., § 906.)


                                             33.
       “A motion for a new trial is only a statutory remedy. [Citation.] There is nothing
in the Constitution pertaining to it, and if the Legislature has seen fit to authorize an
appeal direct from the judgment in a special proceeding of this character without
extending to the court the power of granting a new trial, no discrimination is set up.”
(Board of Education v. Mulcahy (1942) 50 Cal.App.2d 418, 423.)
       “As the motion for a new trial finds both its source and its limitations in the
statutes [citation], the procedural steps prescribed by law for making and determining
such a motion are mandatory and must be strictly followed [citations.] Applying this
rule, it has uniformly been held that an order granting a new trial is in excess of
jurisdiction and void if, for example, it is made in a proceeding in which the remedy of
new trial is not available [citation] .…” (Mercer v. Perez (1968) 68 Cal.2d 104, 118.)

 EVEN IF THE PROBATE COURT COULD HAVE ORDERED A NEW TRIAL;
  THE REHEARING ORDER DOES NOT NEGATE THE PREJUDICE FROM
                   THE FIRST TRIAL’S ERROR
       Moreover, while the rehearing was a new trial in the statutory sense (i.e., it
reexamined an issue of fact), it was not “new” in the remedial sense because the burden
of persuasion was improperly placed on Jeremiah. At the March 8, 2012, hearing, the
court indicated that, at the rehearing, it would be Jeremiah’s burden “of going forward
and asking [the court] to reconsider .…” And, the order after the rehearing states: “This
Court has heard no new evidence or been cited to any new law which would lead it to the
conclusion that its decision made on August 30, 2011 should be changed.…” 18
       At a truly “new” trial, Jeremiah would not have had the burden of trying to change
a prior decision. Rather, the nonparent petitioners would have the burden of proving
parental custody is detrimental to the child. (Evid. Code § 500; Guardianship of Olivia J.

       18 We understand the court’s description of its decision in these terms given that it
did not view the rehearing as a second trial. But that is the point. The
mischaracterization of the rehearing led to an improper allocation of the burden of proof.
This is why the rehearing order did not negate the prejudice from the first trial.


                                              34.
(2000) 84 Cal.App.4th 1146, 1161-1162 [“We also caution that because of the strong
preference for parental custody, and the heavy burden a nonparent must carry of
demonstrating that parental custody is detrimental to the child, a petition for
guardianship is an intrusive and limited remedy .…” (Italics added.)].) Before a court
can grant custody to a nonparent over a parent’s objection, it must find that granting
custody to the 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,
subd. (a).) The finding that parental custody would be detrimental to the child must be
supported by “clear and convincing evidence.” (Fam. Code, § 3041, subd. (b).) The
“nonparent must carry” this burden.19 (In re Guardianship of Olivia J., supra, 84
Cal.App.4th at pp. 1161-1162.)
                                             V.
                                   ATTORNEY FEES
       Jeremiah also challenges two orders regarding attorney fees. On June 4, 2012, the
court granted Jeremiah’s request for attorney fees under Family Code section 2030, but
awarded less than he requested. On June 11, 2012, the court granted petitioners’ request
for sanctions under Family Code section 271.
       Jeremiah essentially argues that there was insufficient evidence to support the two
orders. He also attacks the June 11 order on the basis that Family Code section 271 does
not apply to these proceedings.
       Respondent contends that Jeremiah has failed to provide an adequate record to
review whether the two orders were supported by substantial evidence. We agree, with
one exception. While Jeremiah’s failure to provide an adequate record precludes review
of his sufficiency-of-the-evidence attacks on the two orders, his statutory construction


       19We are only identifying the appropriate burden of proof. We express no
opinion as to the appropriate outcome of the new trial on remand.


                                            35.
argument regarding the applicability of Family Code section 271 survives. We therefore
consider that contention, but ultimately reject it.
                                STANDARD OF REVIEW
       We review Jeremiah’s challenges to the orders under different standards of review.
“To the extent that we are called upon to interpret the statutes relied on by the trial court
to impose sanctions, we apply a de novo standard of review. [Citation.] We review any
findings of fact that formed the basis for the award of sanctions under a substantial
evidence standard of review. [Citation.]” (In re Marriage of Feldman (2007) 153
Cal.App.4th 1470, 1479.)
       We may affirm the sanctions order on any ground supported by the record. (In re
Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.) We resolve all conflicts
against the sanctioned party and indulge all legitimate and reasonable inferences to
support the sanction. (In re Feldman, supra, 153 Cal.App.4th at p. 1479.) We will only
overturn a sanction if, after employing this deferential review, we conclude that “ ‘no
judge could reasonably make that order.’ [Citations.]” (In re Marriage of Falcone &
Fyke (2012) 203 Cal.App.4th 964, 995.) When an appellant fails to include a reporter’s
transcript necessary to evaluate an attack on an order imposing sanctions, we presume the
order is correct. (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178. See also
Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445.)
          JEREMIAH FAILED TO PROVIDE AN ADEQUATE RECORD
June 11, 2012, Order Imposing Family Code section 271 sanctions
       Family Code section 271 permits an “award of attorney’s fees and costs” based on
“the extent to which the conduct of each party or attorney furthers or frustrates the policy
of the law to promote settlement of litigation and, where possible, to reduce the cost of
litigation by encouraging cooperation between the parties and attorneys.…” (Fam. Code,
§ 271, subd. (a).)



                                              36.
       Jeremiah contends that sanctions under this section were “unjustified.” We cannot
reach this contention because he has failed to provide a reporter’s transcript of relevant
proceedings, (i.e., the rehearing). (See Parker v. Harbert, supra, 212 Cal.App.4th at
p. 1178.) Jeremiah contends that the “fees/sanctions question” was determined without a
hearing and therefore no reporter’s transcript was necessary.
       However, the order indicates that the rehearing was relevant. For example, the
order indicated: “The time for resolution of Mr. [N.’s] Motion for Reconsideration was
unquestionably lengthened by his taking of depositions of various witnesses he expected
to call at the hearing.… At the hearing there was no deposition testimony that was
helpful to Mr. [N.’s] claim .…”20
       Additionally, Family Code section 271 requires the trial court to consider “all
evidence” regarding the parties’ “income, assets, and liabilities.” (Fam. Code, § 271,
subd. (a).) In their moving papers filed in the trial court, petitioners argued: “During
testimony at the motion for reconsideration, Mr. [N.] testified that he has not paid a
single penny out of his own pocket for his litigation. He testified that his mother gave
him $7,500.00 for which there was no agreement to pay her back and the rest of the
litigation has been bank rolled by his attorneys. Mr. [N.] also testified at trial that he has
no idea how his expert witness, Dr. Gandolfo, was going to be paid, or how Judge
Broadman was going to be paid for mediation.…” (Italics added.) We have no ability to
review Jeremiah’s testimony at the rehearing without the reporter’s transcript.

       20  We note sanctions would likely not be appropriate where a party sincerely, but
incorrectly, believes a deposition will constitute or lead to discovery of favorable,
relevant evidence. But, Family Code section 271 does encompass the conduct of a party
who knowingly pursues irrelevant discovery to increase the cost of the litigation and
frustrate settlement. (See Fam. Code, § 271, subd. (a).) Without an adequate record, we
do not know whether Jeremiah’s discovery-related litigation tactics rose to this level.
“[W]e presume the court’s order is correct and indulge all presumptions and intendments
in its favor on matters as to which the record is silent. [Citation.]” (Karlsson v. Ford
Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)


                                              37.
       Sanctions under Family Code section 271 “need not ‘be limited to the cost to the
other side resulting from the bad conduct.’ [Citation.]” (In re Marriage of Corona,
supra, 172 Cal.App.4th at p. 1226.) And, the statute “does not require a correlation
between the sanctioned conduct and the specific attorney fees,…” (Ibid.) Therefore, our
inability to review even some of the potential justifications for the award under Family
Code section 271 precludes reversal of the order.
June 4, 2012, Order Awarding Attorney Fees Under Family Code Section 2030
       Family Code section 2030 requires courts to ensure equal access to legal
representation in proceedings for “dissolution of marriage, nullity of marriage, or legal
separation of the parties, and in any proceeding subsequent to entry of a related
judgment,…” (Fam. Code, § 2030, subd. (a)(1).) The statute authorizes, when
necessary, a court order requiring one party to pay to the other party “whatever amount is
reasonably necessary for attorney’s fees and for the cost of maintaining or defending the
proceeding during the pendency of the proceeding.” (Ibid.)
       The failure to include a transcript of the rehearing is fatal to appellate review of
the order granting fees under this section.
       The order itself demonstrates that the rehearing was a relevant proceeding. The
order notes that Jeremiah hired “not one, but two attorneys,” even though Jeremiah’s
income and expense declaration indicated he was earning only $1,600 per month and he
testified at rehearing that his income from bartending tips was negligible. The court
made an adverse credibility finding on this basis, determining that Jeremiah’s testimony
at the rehearing describing his tip income as negligible “does not stand up to common
sense and experience.” (See Evid. Code, § 780, subd. (b).) Jeremiah’s testimony at
rehearing is relevant to the June 4, 2012, order.
       Moreover, Family Code section 2030 provides for an award of attorney fees in
“whatever amount is reasonably necessary for attorney’s fees and for the cost of
maintaining or defending the proceeding during the pendency of the proceeding.” (Fam.

                                              38.
Code, § 2030, subd. (a)(1), italics added.) Many of the trial court’s fee reductions were
based on the court’s conclusion that the services were not “reasonable” or “necessary” in
light of the rehearing. For example, the court ruled that attorney services “in connection
with the retention of and testimony by Dr. Gandolfo were not necessary,” “resulted in an
undue consumption of time,” and were only “marginally probative.” The court denied
fees for correspondence regarding depositions because the court found “no good reason
for expending time and effort on the depositions of witnesses” at the reconsideration
hearing. Additionally, the court further reduced the fee amount because the rehearing
consumed 8 days when “it could have reasonably concluded in four days.” The court
determined the delay was due to “unnecessary consumption of time” by Jeremiah’s
counsel. We have no ability to review these determinations and presume they were
correct.
               JEREMIAH HAS NOT DISTINGUISHED PADUANO
       However, the lack of a reporter’s transcript for the rehearing does not impede our
consideration of Jeremiah’s statutory construction argument that Family Code section
271 does not apply to the instant proceedings at all. Relying on Guardianship of
Paduano, supra, 215 Cal.App.3d 346 (Paduano), the trial court determined that Family
Code section 271 sanctions were available. In Paduano, the Court of Appeal held that
then-Civil Code 4370, subdivision (a)21 attorney fees applied to consolidated
guardianship and family law proceedings where “the issue to be resolved is custody of a
minor child of the marriage.” (Paduano, supra, 215 Cal.App.3d at p. 352.)
       The present appeal concerns a different attorney fees statute than Paduano,
namely, Family Code section 271. Jeremiah contends this distinction is significant
because Family Code section 2030 (and its predecessor statute at issue in Paduano)


       21
        Now Family Code section 2030. (Kevin Q. v. Lauren W. (2011) 195
Cal.App.4th 633, 639, fn. 7.)


                                            39.
contains more expansive language describing applicable proceedings compared to section
271. We disagree. By its express terms, Family Code section 2030 applies to “a
proceeding for dissolution of marriage, nullity of marriage, or legal separation of the
parties, and in any proceeding subsequent to entry of a related judgment.” (Fam. Code,
§ 2030, subd. (a).) Family Code section 271 contains no equivalent language limiting its
applicability to particular types of proceedings. The absence of this limiting language
suggests that section 271 encompasses at least as broad a category of “proceedings” as
Family Code section 2030.
       More importantly, the Paduano decision was not focused on the language of the
attorney fees statute, but rather on the consolidated nature of the proceedings and the
similarity of their subject matter. (Paduano, supra, 215 Cal.App.3d at p. 350.) We read
Paduano as holding that when a probate guardianship proceeding is consolidated with a
marriage dissolution action for the purpose of determining custody, Family Code attorney
fees provisions apply. Absent any express provision in Family Code section 271 limiting
its applicability in a more restrictive manner than Family Code section 2030, we fail to
see how Paduano can be distinguished.
                                            VI.
                      ALLEGATIONS OF TRIAL COURT BIAS
       We close by briefly addressing Jeremiah’s claims of pervasive bias on the part of
the trial court. Jeremiah’s brief is replete with accusations of bias and impropriety
stemming from the adverse rulings outlined above. The record does not support these
contentions. To the contrary, the court’s extrajurisdictional order for a new trial appears
to have been borne out of a sincere concern for Jeremiah’s due process rights. That is,
the court seems to have done much within its power (and some things beyond its power)
to ensure a fair ruling on the petition. We are reversing the judgment in spite of
Jeremiah’s disparagement of the trial court, not because of it.



                                            40.
                                     DISPOSITION
       The June 4, 2012, and June 11, 2012, orders are affirmed. The trial court’s order
granting respondents’ petition for guardianship of A.N. is reversed. The letters of
guardianship are revoked. The matter is remanded for a new trial on the guardianship
petition.

                                                               _____________________
                                                                Poochigian, J.
WE CONCUR:


______________________
Gomes, Acting P.J.


______________________
Detjen, J.




                                            41.
