Guardianship of K.J. CA5

Filed 8/6/21 Guardianship of K.J. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 K.J., JR., et al., Minors.

JENNIFER J., F080728

Petitioner and Appellant, (Super. Ct. No. 3481)

v.
OPINION
KAYE O. P.,

Objector and Respondent.

APPEAL from an order of the Superior Court of Mariposa County. F. Dana
Walton, Judge.
Jennifer J., in pro. per., for Petitioner and Appellant.
Moran Law Firm, Amanda K. Moran and Janay D. Kinder, for Objector and
Respondent.
-ooOoo-
The probate court awarded paternal grandmother, Kaye P. (grandmother),
guardianship of her two grandsons, now 10-year-old K.J., Jr., and six-year-old K.J.
(collectively, the boys). The boys’ mother, Jennifer J. (mother), who represented herself
both below and on appeal,1 appeals the probate court’s order, which also denied her
petition to terminate the guardianship.
Mother contends the order should be reversed because: (1) Probate Code
section 2250, which dispenses with notice for a hearing on a petition for temporary
guardianship on a showing of good cause, violates due process; (2) probate guardianships
should be treated as criminal or quasi-criminal proceedings, with all the attendant rights,
including the right to secure an attorney and to confront witnesses; (3) the probate court
erred by admitting and relying on hearsay evidence of her alleged drug relapse; (4) the
probate court erred by not disqualifying grandmother’s expert witness; (5) assuming she
relapsed, the probate court erred by awarding custody to grandmother on that basis alone;
and (6) the probate court erred by failing to consider recent domestic violence the boys’
father, K.J. (father), inflicted on mother. Finding no merit to mother’s contentions, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2019,2 grandmother, acting in propria persona, filed a petition to be
appointed the guardian of the boys, who were then eight and five years old. The petition
asserted grandmother had been the boys’ guardian from May 2016 to March 2019, and
mother regained custody of the boys on March 11 based on three negative hair follicle
tests and her sworn statements, which she made in “guardianship court” on December 17,
2018, and in her April 3, 2018 declaration, that she was not using illegal drugs.

1 Soon after mother filed her notice of appeal in propria persona, she filed a form
substituting an attorney in her place. Before the opening brief was due, mother’s attorney
died. By two court orders, we granted mother time to file a substitution of attorney and
stayed briefing on the merits of the appeal, but informed her if she failed to file a
substitution of attorney within the time permitted, we would consider her to be self-
represented. Mother did not file a substitution of attorney within the allotted time, so she
is proceeding as a self-represented litigant on appeal.
2 References to dates are to the year 2019, unless otherwise stated, in this section.

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 The petition stated guardianship was necessary because: (1) mother hired another
person, Marcie Villalpando (Marcie), through Craigslist to take the hair follicle tests in
her place because she was not clean; (2) mother did not have a stable place to live and
may be unemployed; (3) mother had not been consistently caring for the boys and their
school attendance was inconsistent; (4) mother had not allowed father or grandmother to
visit the boys after the guardianship was terminated; and (5) father was unable to care for
the boys as he was on probation in a domestic violence case. Grandmother did not
believe the boys were in a safe, stable, drug-free living environment and asserted mother
had not provided for their care consistently since she gained custody in March.
The petition stated it would be in the boys’ best interest for grandmother to be
appointed guardian because she had been the boys’ guardian for nearly three years and
had taken care of them for extended periods since they were young; she had a stable
home and job as a special education teacher; when in her care, the boys attended school
regularly and had regular medical and dental care; and she would not keep the boys away
from their parents as long as they were safe.
Grandmother also requested appointment as the boys’ temporary guardian. In
that petition, grandmother asserted the boys needed a temporary guardian because:
(1) mother was believed to be on methamphetamine, as she hired someone else to take
her place for hair follicle tests; (2) she did not have a stable place to live; (3) she had not
been caring for the boys consistently and could not be located for several days at a time;
(4) the boys’ school attendance was inconsistent; and (5) father was on probation for
domestic violence and was homeless.
Grandmother asked to be excused from giving mother and father notice of the
hearing on the petition for appointment of a temporary guardian. As good cause for the
request, the petition asserted father was aware grandmother was filing for guardianship
and was not contesting it, and he would be notified of all guardianship hearings. With
respect to mother, grandmother was concerned she would hide the boys or remove them

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from Mariposa County if notified prior to emergency temporary guardianship. The
petition stated mother had a boyfriend who lived in Bakersfield and she would go there to
stay for days at a time, grandmother did not know where mother was staying with the
children although she sometimes dropped them off or picked them up from school, and
once the boys were safe, grandmother would make every attempt to serve her any papers
required for the temporary or permanent guardianship.
Attached to the petition for temporary guardianship were two declarations, one
from Marcie and the other from Matthew Hamlett, who had employed mother. Marcie
stated in her declaration that she contacted a Craigslist ad that read “Easy GIG 90-Day
Hair Folicle [sic]” via e-mail. Mother responded and told her she needed the hair follicle
test because she was in the process of a guardianship hearing for her children, her ex-
husband was abusive, and child protective services had taken the children, who were in
the care of his mother. Mother told Marcie she was not clean and would not pass the hair
follicle test, but she was cleaning up and needed Marcie to test for her once. Marcie
stated she completed three hair follicle tests for mother in Merced in January and March,
and while mother agreed to pay her for each test, she did not fully pay her. After that,
mother disconnected her number, removed Marcie from Facebook and Marcie had no
contact with mother since mother’s last text to her on March 21. Marcie further stated,
“[p]lease see all the attached forms and documents,” and apologized for her deception,
claiming mother had lied and manipulated her. The signed declaration, dated May 1,
stated, “I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.”
Attached to the declaration was one e-mail string from December 29, 2018, in
which Marcie stated she was interested in the “gig” and could pass the hair follicle test,
and mother purportedly responded that she had been trying to terminate the boys’
guardianship for over a year, her husband recently came back into her life and was in jail
for trying to kill her, grandmother had guardianship, and she wanted her kids back. The

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e-mail further stated mother passed a hair follicle test in March 2018, but the judge
wanted another one and “to be honest I won’t pass,” and she was trying to find someone
she could pay to pose as her and get the test done, stating the clerk that did the collection
barely paid attention to the identification.
On May 30, the probate court appointed grandmother the boys’ temporary
guardian without notice to mother or father and set a hearing on the guardianship petition
for July 1.
Mother filed a petition to terminate the temporary guardianship on June 21, which
was set for hearing on July 1. She asserted it was in the boys’ best interest to terminate
the guardianship because the hearing on the temporary guardianship was held without her
knowledge on the ground that she would hide the boys, but she had never given any
indication she would do such a thing. Mother stated she worked very hard to terminate
the first guardianship, father brutally attacked her six months ago and was convicted of
domestic violence, and she believed the guardianship placed the boys at great risk of
harm because grandmother was relying on father to care for the boys in violation of
Family Code3 section 3044. Mother did not believe grandmother could care for the boys
in a safe environment, as she relied on father to take them to school and allowed them to
sleep with father in his van, where he was living. Father had violated a restraining order
that protected mother and her daughters, Sydney H. and Maddison M., by going to the
school the girls attended. Mother claimed the boys did not have their own beds to sleep
in, they were dropped off at school not fully dressed for the weather, and they were
sustaining long term trauma from being moved back and forth between households.
Mother attached her declaration to the petition, in which she claimed she quit
methamphetamine and had not used drugs since. Mother attached maps with her
locations from her cellphone which she said proved she was at the Merced courthouse

3 Undesignated statutory references are to the Family Code.

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when the tests were taken, and said she had witnesses for three of the tests: Lisa Parker
went with her to two tests, and her 14-year-old daughter, Sydney, was with her when she
took two tests. Mother had no idea who Marcie was.
Mother further stated she had several places to live. The boys had their own
rooms and beds at the house in Bakersfield. Mother also had a “small but mighty support
system in Mariposa,” consisting mostly of family, who would step in whenever she
needed them. Mother would love to stay in Mariposa, but she had a job in Bakersfield
and a beautiful home, where she was not at risk of seeing father. Mother admitted K.J.,
Jr., had missed some school, but a lot of his poor attendance was when grandmother had
guardianship, and the recent missed days occurred when the boys told her they wanted to
stay home with her, which seemed reasonable as it allowed them to reconnect and bond
with her. Mother asserted her oldest daughter, Sarah, was the only other main caregiver
for the boys.
Attached to the petition were declarations from mother’s three daughters and her
first mother-in-law, printouts of her google location history on the date of the hair follicle
tests, a copy of the restraining order and criminal protective order, and the sheriff’s report
from father’s domestic violence case. The restraining order, which was filed on January
10, states mother and two of her daughters are protected from father. The Mariposa
County Sheriff’s Office report states the domestic violence case was based on a
December 4, 2018 incident, in which mother reported father placed her in a chokehold
three times during a domestic dispute at her home. Father was arrested at grandmother’s
home and charged with corporal injury to a spouse and false imprisonment. None of the
children were present during the incident.
The July Hearings
Grandmother and mother both appeared in pro per at the July 1 hearing. The
minute order states the probate court noted it would be a lengthy trial and continued the
hearing to July 17.

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 At the July 17 hearing, grandmother appeared with an attorney, Casey Aitchison.
Aitchison stated at the last hearing the probate court ordered a witness to return on July
17, but she was not there, and Aitchison needed her to be able to present grandmother’s
case. The probate court agreed to issue a bench warrant for the witness, noting it
specifically ordered her to be there. Mother told the probate court she was notified four
days ago that grandmother retained counsel and asked if she could have some time to
retain her own attorney. Mother thought it was possible an attorney from Oakhurst
would represent her, but she did not know when he was available. Aitchison contacted
the attorney’s secretary for mother, who gave her some dates when he was available.
Aitchison, however, was not able to reach the witness and suggested the probate court
issue and stay the bench warrant. The probate court agreed to do so. The probate court
denied Aitchison’s request to allow the boys to have unsupervised visits with father at
grandmother’s discretion, noting the existence of the restraining order. The probate court
continued the hearing to September 11.
The September 11 Hearing
At the September 11 hearing, Aitchison informed the probate court she was unable
to personally serve Marcie, but not for lack of trying. Aitchison explained she hired a
process server to personally serve Marcie with the order after hearing. While the process
server looked at two addresses Aitchison obtained from a background check, they did not
find her at either address. Aitchison sent the order to Marcie at the e-mail address Marcie
used to contact grandmother and father which stated she was required to be at the
hearing; the e-mail was not returned. She also sent Marcie three e-mails explaining she
was required to be there. Finally, grandmother texted Marcie telling her what was
happening and that she needed to be there. According to grandmother, Marcie texted
back: “Don’t threaten me. I have gone there once. I’m not going anymore.”
Aitchison, however, believed there could be a work-around if she were able to
obtain the signature pages from the hair follicle tests, as the witness told grandmother she

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was unable to forge mother’s signature. Aitchison sent mother a request for production
of the signature pages, but mother never responded. Mother stated she decided against
getting counsel because it was “costing me so much money driving back and forth.” She
did not provide the documents because she was not going to use them at trial.
The probate court stated it intended to issue a civil warrant for Marcie. Aitchison
asked the probate court to allow father unsupervised time with the boys so he could take
them to school in the morning, adding that the restraining order prevented father from
going to the school. Aitchison said father brought documents showing his participation
in the court-ordered programs from the criminal case, his completion of phase two of the
drug court, and his probation officer’s statement that he was doing well. Mother stated
father was not prevented from going to the school anymore because the girls were no
longer going there. Father informed the probate court there was both a civil family law
restraining order, which protects mother and the two girls, and a criminal one that
protects only mother. The probate court declined to make any changes on visitation until
it was able to review all the restraining orders. After mother told the probate court she
did not have any objection to visitation with father, the probate court told Aitchison to
prepare an order.
Aitchison intended to bring a motion to compel mother to produce the signature
pages, but also would try to subpoena them from the Merced County Superior Court.
The probate court denied mother’s request for overnight visits with the boys and
continued the hearing to October 9.
Aitchison prepared an order after hearing, which the probate court signed and filed
on October 8. The order states: (1) Marcie was present at the July 1 hearing and ordered
by the probate court to appear at the July 17 hearing, but she failed to appear; (2) the
probate court issued and stayed a bench warrant for Marcie’s arrest to ensure her
attendance at the September 11 hearing, but Marcie failed to appear; and (3) the probate
court now issues and releases the civil warrant to be lodged with the sheriff and entered

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into the statewide system. The order further states that, by agreement of the parties,
consideration of the evidence presented, and good cause appearing, the probate court
does not place any restrictions on father’s visitation and contact with the boys, adding
that the order is not intended to preempt any family law court orders pertaining to any
other children that are not subject to the guardianship or any criminal protective order.
The October 9 Hearing
At the October 9 hearing, Aitchison informed the probate court she subpoenaed
the signature pages for the hair follicle tests from the Merced County Superior Court,
which she received and wanted to lodge with the court.
The subpoenaed documents were contained in a packet marked as exhibit A,
which Aitchison asked the probate court to review before making “an order on what
should happen next.” The packet consisted of: (1) a letter from the Merced County
Superior Court; (2) the March 20, 2018 drug screen, which had a signature and mother’s
phone number with a 209 area code; (3) the January 7 drug screen; (4) the March 5 drug
screen; (5) a proof of service; (6) the page mother signed in her response to the
guardianship petition and request to terminate the guardianship; (7) Marcie’s declaration
that was attached to grandmother’s petition; and (8) the e-mail chain that was filed with
the probate court.
Aitchison asserted the January 7 signature appeared to be an attempt to match the
previous signature and the phone number was the same except it had a 559 area code.
Aitchison believed the March 5 signature clearly looked different and noted the phone
number had a 009 area code. Aitchison asserted mother’s signature on her response
looked “very similar” to the signature on the first drug test, and Marcie’s signature on her
declaration and the signature on the third drug test looked similar. Aitchison noted the
e-mail chain showed the e-mail purportedly from mother with the same phone number
with a 209 area code, while Marcie had a 559 area code. Aitchison asserted that all of
this showed the person who signed the second and third drug tests had a different

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signature than mother’s and was consistent with the drug test being done by two different
people.
Mother objected to Aitchison judging her handwriting because she was not a
handwriting specialist. Mother asserted her signature had changed over the years and she
had a 559 area code because she bought a “throwaway phone.” Mother later added that it
was easy to falsify e-mails and the e-mail did not come from her e-mail address. The
probate court stated it would set the matter for hearing so mother could explain these
things while under oath.
Aitchison told the probate court she had not had any more contact from the
witness. She was waiting to receive last hearing’s order from the probate court, but she
would e-mail it to the witness once she received it and ask the witness to contact her.
Aitchison asked the probate court if it would receive the court investigator’s report
without the need for the court investigator to be present. The probate court responded,
yes. The probate court set the trial for November 26.
The Trial on the Grandmother’s and Mother’s Petitions
Trial on the grandmother’s petition for guardianship and mother’s petition to
terminate the guardianship took place on November 26 and December 4. The probate
court confirmed it would consider the court investigator’s report without her presence at
trial; Aitchison noted the investigator had concerns about mother’s ability to provide
stability for the boys.4
Grandmother and father testified in grandmother’s case-in-chief. Father testified
someone who said her name was Marcie Villalpondo contacted him in March through
Facebook Messenger to tell him that she took the hair follicle test for mother, and they

4 The Probate Code requires a court investigator to investigate and report on any
proposed guardianship, unless the court waives the investigation. (Prob. Code, § 1513,
subd. (a).) The probate court is required to read and consider the court investigator’s
report prior to ruling on the petition for guardianship. (Id., § 1513, subd. (c).)

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exchanged a series of messages. Father sent the messages to grandmother, since she had
been the boys’ guardian. The Facebook messages included screenshots of purported
messages from mother’s phone, which had mother’s name and phone number on them.
One of the screenshots was a picture of mother’s driver’s license, which father
recognized as hers.
Father provided Aitchison with a complete, true and correct copy of all the
Facebook messages he received. The Facebook messages were marked as exhibit 1,
which father confirmed was a transcript of the Facebook messages he provided Aitchison
and a true and correct copy of the messages.5 When Aitchison asked that the document
be received into evidence, the probate court asked if there was an objection and hearing
none, admitted the exhibit. Father confirmed he told Marcie to reach out to grandmother
and gave her grandmother’s number, and Marcie provided him with a screenshot of
mother’s telephone number and a picture of her driver’s license.
Father testified he was on probation and was actively participating in all his
classes. He completed a parenting class and was attending drug court and batterers’
treatment. Father provided Aitchison with a statement from the batterers’ treatment
program attesting to his progress, which was admitted into evidence as exhibit 2. Father
testified there were no restraining orders in place that specifically named the boys,
although there were restraining orders that restrained him from having contact with
mother and her other children. Father was asking the probate court to continue the
guardianship for the time being. Father admitted the family court ordered him to have
supervised visits with the boys. The probate court took judicial notice of the family court
file and order on its own motion.

5 According to the minute order of the hearing, exhibit 1 is a 12-page stapled
document. None of the exhibits entered into evidence at trial or lodged with the probate
court are in the appellate record, as mother, through her attorney, did not designate them
for inclusion.

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 During a break in the proceedings, mother filed a declaration with a document
attached that purported to be a text exchange between the probate court judge and another
person. Mother stated her son created the document at her request to show the likelihood
screenshots of text messages could be altered or fabricated. Aitchison did not dispute
people can manufacture documents. The probate court told mother even if text messages
can be falsified, “the declaration of the person who, at one time, was in this courtroom
and was ordered to come back to testify, the declaration pretty much solidifies what those
e-mails are, indicating that she had contact with you, and that she claims to have taken
those tests,” although that had not yet been proven. Mother stated she did not understand
what the probate court was saying; the probate court responded it was “saying she was
here at one time ready to testify, and we didn’t go forward, and I ordered her to be here.
But she filed a declaration with the Court … [¶] … [¶] stating what occurred from her.”
The probate court said it would allow mother’s son to testify as to how he created the
document and mother could also testify about that if she wished.
Grandmother then testified. She said Marcie contacted her in March via Facebook
Messenger and they exchanged multiple text messages. She also had spoken with Marcie
on the phone and was present the day she came to court. When Marcie first contacted her
on Facebook, she told grandmother that father advised her to contact grandmother about
taking the hair follicle test for mother. Grandmother provided Aitchison with a complete
record of their Facebook communications, which was marked as exhibit 4. Grandmother
confirmed exhibit 4 was a true and correct copy of all the communications she had with
Marcie via Facebook.6
In those communications, grandmother asked Marcie to provide the
communications Marcie had with mother. One was a picture of mother and four of her

6 According to the minute order, exhibit 4 consists of a 72-page colored document
of Facebook messages.

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children, including the boys, in front of the Mariposa County Superior Court, and there
were more pictures of the children. The rest of the communications asked Marcie if she
was willing to come forward as a witness. Marcie explained what the Merced courthouse
looked like, where she went to do the hair follicle tests, the address mother provided her,
and a picture of mother’s California driver’s license. When Aitchison moved to have
exhibit 4 received into evidence, the probate court asked mother if she had “any objection
at this stage?” Mother responded, “[o]bjection to that being submit[ted] as evidence?”
The probate court answered, “Yes,” and mother responded, “No.” The probate court
admitted the exhibit.
In those communications, grandmother asked Marcie to e-mail her a declaration
with attachments showing her contacts with mother, which she did. Grandmother
forwarded the e-mail to Aitchison, which was marked as exhibit 5.7 After grandmother
confirmed exhibit 5 was a true and correct copy of the entire e-mail Marcie sent her on
May 13, Aitchison asked to move the exhibit into evidence. Mother objected “based on
what I showed you earlier about them being able to be falsified.” The probate court
overruled the objection, stating mother could present evidence on that on cross-
examination or in her own case, and admitted the exhibit.
Grandmother confirmed an attachment to the declaration in exhibit 5 states the
Craigslist ad was placed around December 2018. A response at the top of the document
signed by “J.” states: “Marc[ie], sorry for taking so long to get back to you. I passed a
hair follicle test back in March, but now the judge is saying he wants another one. And to
be honest, I won’t pass.” Grandmother denied typing that herself or having someone type
it for her. Grandmother also denied creating, or having some else: (1) create a false
Craigslist ad saying she was mother and asking someone to take a hair follicle test;
(2) create a false Craigslist identity of mother; (3) create fake texts from mother; (4) snap

7 According to the minute order, exhibit 5 consists of a 13-page stapled document.

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a picture of mother’s driver’s license and text it to someone; (5) create a fake Facebook
profile for mother or Marcie; and (6) pay someone to come to the earlier court hearing
and say they were Marcie.
Grandmother is Facebook friends with Marcie and confirmed exhibit 6 is a
snapshot of Marcie’s Facebook page.8 Grandmother asked Marcie to come to that day’s
hearing and told her there was a warrant out for her arrest, but Marcie did not appear.
Grandmother confirmed she had Aitchison hire a process server to try and serve her with
a subpoena, paid Aitchison to perform a background search to try and find her so they
could serve her, and asked Aitchison to have the probate court issue a warrant to secure
her attendance. Despite all these things, they had not been able to secure Marcie’s
attendance at the hearing.
Based on grandmother’s testimony, Aitchison asked the probate court “to make a
finding that the witness is unavailable.” The probate court asked mother: “Would you
agree?” Mother asked the probate court to say that again. The probate court explained,
“She’s asking me to make a finding that Ms. Villalpondo is an unavailable witness.”
Mother responded, “Seems that would be the case, yes.” The probate court stated, “The
finding is so made.”
Grandmother testified the picture of Marcie on the Facebook profile in exhibit 6
showed the person who appeared in court. Grandmother again denied creating that
Facebook account and making up a fake name and fake person, or that anyone else did.
Grandmother also denied either she or someone else posted a Craigslist ad in December
2018, and made fake Facebook accounts and messages, fake text messages, and fake
e-mails.
On cross-examination, grandmother testified her primary concern for the boys
after they were returned to mother was Marcie telling her she took the drug test for

8 It does not appear that exhibit 6 was ever moved into evidence.

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mother and mother telling Marcie she was still using drugs and would have a negative
drug test. Grandmother did not ever believe Marcie was lying. Grandmother agreed
there was information grandmother gave Marcie that Marcie would not have otherwise
had, but she did not believe Marcie could have used that information to lie about mother.
Grandmother also was concerned that mother did not want to live in a stable place for a
long period of time, and the boys were not always with her but were being watched by
someone else.
Aitchison did not have any other witnesses, but she wanted to make sure the
deposition subpoena production from Merced County Superior Court, which she
previously provided to the probate court as exhibit A, was lodged in the court’s file. The
probate court confirmed it had the exhibit.
Mother’s witnesses were Lisa Parker, her son, Dylan H., her daughter, Sydney,
Patricia Morris, and herself. Lisa Parker testified she drove mother to Merced County
Superior Court to take a hair follicle test in March 2018 and loaned her money for the
test. Parker explained the process for the test and stated mother later texted her that the
test result was negative.
Eighteen-year-old Dylan testified he altered the text messages attached to mother’s
declaration, marked as exhibit A, using a downloadable program on his computer to show
how easy it is to alter text messages. Dylan had no training on editing text messages; it
took him about 10 minutes to alter the messages, which included looking at a YouTube
tutorial.
Dylan grew up with the boys, who were his half brothers; he did not see any
reason why they should not be in mother’s care. He had never known mother to be on
methamphetamine. He had no knowledge of mother possibly paying someone else to
take a hair follicle test for her and did not think that was something she would likely do.
The probate court showed Dylan the texts in exhibit 5 and asked him if they were
different than the ones he created. Dylan responded there were multiple ways to change

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content, such as changing the name, number and dates, which could be done easily.
Dylan did not know if the texts in exhibit 5 were created with the same program he used,
but it would be easy to screenshot something with similar content. Dylan was
knowledgeable about this because his father did information technology work and he
followed YouTube channels on video editing. Dylan could not tell if there was anything
on the exhibit 5 text message that would indicate it was not real because it was a very
low-resolution image. To Dylan’s knowledge, mother had never had a phone with a 559
area code.
Fourteen-year-old Sydney testified she knew the boys, who were her half brothers,
well, and she had never seen mother do anything to show they should not be with her.
Sydney had never seen mother on methamphetamine while she or the boys were in her
care. Sydney had seen problems with the boys being placed with grandmother, but she
had not been to grandmother’s house within the past year. The last time she was there,
the boys did not have very many clothes, and they either slept in the same bed or on the
couch. Sydney went to the same school as the boys and saw them come to school in the
winter without jackets; Sydney called mother and she brought them jackets. Sydney felt
mother had a stable living environment and when she lived with mother, she never felt
she did not have a place to sleep, food to eat, or the basics of life. Mother always had a
bed and food for the boys when they were with her.
Sydney was aware mother took several hair follicle tests for the probate court in
the guardianship case; Sydney was with mother for two of them, one in 2018 and the
other in January 2019, and mother told her about the other two. Sydney went to the 2018
test with mother and Lisa Parker. For the January 2019 test, Sydney was the only one
with mother. Sydney saw the lady named Marcie in court at an earlier hearing and she
had never seen her before. Sydney described the process mother went through to provide
the hair sample and she did not see Marcie there that day.

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 Sydney said grandmother stopped paying for mother’s cellphone bill around
November 2018. After that, mother had a prepaid cellular phone for a few months until
John Marsha, who Dylan described as mother’s surrogate father, started paying for her
cellphone. Sydney had complete access to mother’s cellphone and had never seen a text
message concerning someone else taking a hair follicle test for mother. Sydney also had
complete access to mother’s e-mails, which she sometimes checked for mother, and had
never seen an e-mail from someone about taking a hair follicle test for her.
On cross-examination, Sydney testified she went to high school in Mariposa and
lived with her father, her grandparents, and her two brothers, while mother lived in
Bakersfield. On redirect, Sydney testified she knew mother’s address in Bakersfield, and
she and the boys had their own rooms there. She had never had any negative experiences
in that house.
Patricia Morris had known mother since February 2017. She spent time with the
boys and saw mother interact with them. She never saw any evidence that it would be
detrimental to the boys to be placed with mother rather than grandmother, or any
evidence that would make her think mother was on methamphetamine. Morris believed
mother’s home life had been stable since March—mother lived with Morris for a while
and then mother moved to the Bakersfield area. Morris had seen the boys cry when they
had to leave mother and return to grandmother.
On cross-examination, Morris testified she would be surprised to learn mother had
a positive drug test in December 2017 that was extremely high for methamphetamine.
On redirect, Morris testified that from the first time she met mother, she had been a good
mother to all her children. Morris’s granddaughter spent a lot of time with mother and
Morris felt mother cared for her well.
Mother testified she is not a habitual, frequent, or continual user of illegal
substances. She had never been charged with a drug-related offense and the samples she
gave at the Merced court were hair follicle samples, not urine samples. She asserted the

17.
emergency orders for the boys were not based on any evidence of child abuse or
molestation. Mother stated Marcie’s written testimony was “completely false” and she
never met the woman. She had only seen Marcie that one day in court, and never
corresponded with her. The text messages and supposed e-mails from Craigslist were not
from her. She was not on drugs and while it was not easy to quit, she did.
The probate court asked mother what her plans were. Mother said she was going
to live in Bakersfield. She was engaged and had a good job in property management.
When the boys are with her, they would attend a nearby elementary school, and Sydney
might move to Bakersfield for the next school year. She would like to move back to
Mariposa eventually, but there was not a lot of opportunity for her there and her fiancé is
a part owner of a very large tax firm. The boys knew her fiancé; he and mother had been
together since January, and the boys spent quite a bit of time with him before they went
back with grandmother in May. Mother admitted her hair follicle test in December 2017
was over seven times the cut-off for methamphetamine, although she did not think it was
a large amount. In any event, she knew she should not have it in her system.
Aitchison called a rebuttal witness on grandmother’s behalf—her husband, Steven
Aitchison—to rebut Dylan’s testimony it would be simple to manufacture a screenshot
and present the fake evidence as a hoax. Steven first testified about his credentials. He
had been a graphic designer for 30 years and owned a graphic design business for 22
years. Steven confirmed he is Aitchison’s husband and they had been married eight
years. In the past 30 years, he had designed thousands of web pages. His graphic design
business is mostly for pharmaceutical companies—he designs web pages and sets up
medical conferences sponsored by pharmaceutical companies at places all over the world.
Steven also owns other businesses, including vacation rentals. He is very familiar with
Craigslist, as he uses it in his vacation rental business to post and answer Craigslist ads.
He promotes his business through Facebook and regularly uses it to send and receive
messages. He also has experience with e-mails—he gets over 700 e-mails a day and

18.
oversees the daily marketing e-mail blasts that go out from his graphic design business.
He agreed it was fair to say he was familiar with Craigslist, Facebook, graphic design,
and web pages.
At that point, Aitchison submitted Steven was an expert in those areas and asked
him to be qualified as an expert. The probate court gave mother the opportunity to
question Steven on his status. Mother asked how much experience he had with
cellphones and text messaging. Steven said it was his primary method of communication
for all his businesses—he probably sent 50 to 70 texts per day and made phone calls.
Mother then began asking him questions relevant to whether the communications were
forged. She asked if it was possible to change the date and timestamp on text messages.
Steven responded not within the phone, but it was possible if the texts were outside the
phone. Steven was aware Facebook account duplication occurred, when someone creates
a false Facebook profile that looks like a real person’s and hacks their account and
messages. He had 30 years’ experience with photo editing software—it was a major part
of his business—and he agreed it was difficult to edit a photo of text messages, as it
would take “immense effort” to do it without being able to detect it was done. He also
agreed it was difficult to recreate or fake Craigslist generated e-mails due to the way
Craigslist works in generating e-mail addresses to protect both parties’ anonymity and
privacy. Even if someone just changed the names on an actual string of text messages,
you would still have to match fonts or colors exactly without evidence of overlay or that
something changed.
The probate court stated it was going to deem Steven an expert witness, but
mother could argue why he should not be considered an expert once his testimony
concluded. Mother then asked Steven about his experience with cellphone text messages
and altering them, especially timestamps. Steven responded it would be the same as
doing it with Facebook or Craigslist, and it was possible to edit messages off a phone, but
it was quite limited. Businesses he works with have asked him to verify screenshots for

19.
their validity, such as determining whether someone had beat a registration deadline.
Steven had seen people alter e-mails and texts to try to skirt deadlines, and it usually was
quite evident when it happened. Mother asked if he ever tried to alter a timestamp.
Steven said he had quite a bit of experience taking out timestamps and recreating “stuff”
to illustrate the process used to fabricate an e-mail where someone was trying to beat a
deadline and did not put the right timestamp.
Aitchison asked Steven about the court’s exhibit A, which Dylan prepared. At
first glance it looked to Steven like a series of text messages on a phone, but he could tell
it was done manually on a computer, probably by taking a screenshot of an actual
conversation, clearing out the text, and creating new conversation pieces. It was clear to
him “in seconds that this was mocked up by a person rather than done on a computer.”
Steven reviewed exhibits 1, 4, and 5. He reviewed several pages of the Facebook
conversation in exhibit 1 and opined it did not appear to be forged, altered, or
manufactured, as they appeared consistent with Facebook and contained things Facebook
automatically generates. Based on his experience, exhibit 1 appeared to contain genuine
Facebook printouts. There was nothing in the screenshots purportedly from Marcie’s
phone to indicate they were altered. The documents contained a level of detail and
quality that would take more than two weeks to duplicate. He could not imagine a
layperson creating them due to the level of consistency.
In Steven’s opinion, the Facebook printouts of grandmother’s conversation with
Marcie contained in exhibit 4 were not mocked and forged, as the level of consistency
was “just masterful.” He did not believe the average person could forge them and only a
professional could have created them. He did not see anything to suggest it was a
forgery. Steven also opined it would be “insanely complicated” to forge the e-mail from
Marcie to grandmother, which was exhibit 5, due to the level of consistency. The
Craigslist references on the e-mails also indicate it is not a forgery, as they were
consistent with how Craigslist does things.

20.
 On cross-examination, mother asked about the different font sizes on the e-mails;
Steven believed the different font sizes indicated it was less likely the e-mails had been
altered. Mother then asked why different font sizes on text messages indicated a forgery.
Steven explained cellphones are different from e-mails, because a cellphone generates the
font size, not the user, so the font size is the same, which is why he could tell court’s
exhibit A could not have been generated by a cellphone—the font sizes were different.
On e-mails, however, people regularly use different font sizes. Steven admitted it was
possible mother’s purported Facebook account was copied, but even if it was, it would
have been an “immense effort” to create a conversation with such depth and detail.
After a break in Steven’s testimony, mother produced “new evidence” she printed
out with Sydney to show that a date and timestamp on a phone could be changed. She
was able to take a screenshot and change the date and time. The probate court marked
the document for identification. Mother continued to question Steven. He did not agree
the times and dates on the text messages in exhibit 5 could have been changed without
using photo editing software, as the phone service enters the times through their system.
Steven testified the time and date appeared to have been changed on the text messages
Dylan created because they did not correlate to the messages. Steven, however, admitted
he did not have any experience with changing the dates and times on phones.
Mother asked Steven to explain again why he would expect different font sizes on
an e-mail but not a cellphone. Steven responded that on e-mails the computer or
cellphone on either end of the communication governs, each of which has the capacity to
dictate the fonts being used and can do things that are not allowed in cellphone texts.
Therefore, when the font is off in texts, that generally signals something has been
switched. Steven began to talk about e-mail conversations using a text-only program
when mother objected based on his lack of personal knowledge of cellphones. The
probate court overruled the objection and stated it would give the testimony the weight it
deserved.

21.
 After Steven concluded his testimony, mother asked to recall Sydney, who she
intended to qualify as an expert. As an offer of proof, mother said Sydney would testify
she knew the date and time could be changed and how to do it, and it only took her two
minutes to do so. She also knew how to easily edit photos and could edit Snapchat and
make it look believable. Mother believed Sydney had more expert knowledge about
phones than Steven. Aitchison stated she would accept the offer of proof and the probate
court agreed to accept it.
Aitchison also made an offer of proof that grandmother would testify she has
separate beds for the boys, and they have jackets. In addition, one of the boys had perfect
school attendance and while the other one had missed school, she had doctor’s excuses
for him, and the boys were doing very well. Mother accepted the offer of proof.
In closing argument, Aitchison argued it would have taken a mastermind to create
a fake Craigslist, Facebook, and screenshots in the week between the time the
guardianship was terminated until the first date stamp appeared, and it would take a lot of
money to hire someone to do it. Aitchison asserted the most logical explanation was not
that someone was trying to blackmail mother by contriving a hoax, but rather that mother
hired someone to take the January and March tests for her. Aitchison further argued the
signatures and wrong phone numbers on the hair follicle tests were consistent with
someone taking the tests for mother. Aitchison noted all the evidence was submitted
without objection, and rightly so because Evidence Code section 1230 allows the
admission of statements that are a declaration against interest when a witness is
unavailable. Aitchison did not think mother’s actions had been in her children’s best
interest, such as mother moving to Bakersfield when her children lived in Mariposa, and
having her children testify rather than making an offer of proof.
Mother began her argument by addressing section 3041.5, which sets out when
drug tests are allowed in guardianship proceedings and the kind of test allowed. The
probate court stopped her to clarify it told her “at the very beginning you didn’t have to

22.
take [the drug tests], that they would be voluntary, and you chose to do so.” Mother
asserted the voluntary nature of the tests proved she took them herself, which the probate
court acknowledged was evidence of that possibility. Mother argued the voluntary drug
tests were not admissible because they did not meet the standards of section 3041.5, i.e.,
they were not through a federal employee testing agency, they were not urine tests, and
the results were not kept confidential, as the results were revealed during the trial.
When mother stated she did not know how to explain why she moved to
Bakersfield, the probate court noted she could have testified about that, but the only issue
was whether she defrauded the probate court by having someone else take her test.
Mother responded if that was the real issue, the boys should not have been taken from
her, and especially not on an ex parte basis, as the law clearly states a positive drug test
alone is not enough to place children in a guardianship. Mother argued that even if she
regained the boys by fraudulent testing, that did not show detriment to them. The probate
court asked if her argument was that a chronic meth user should not have their children
removed. Mother responded there was no evidence she was a chronic meth user. The
probate court stated there was evidence she obtained the boys fraudulently, and it
dissolved the guardianship and handed the boys over to her based on those tests.
Mother asserted that she obtained a number with a 559 area code after
grandmother shut her phone off, but as soon as she got back on a regular plan, her area
code changed to 209. She further asserted her signature changed all the time. The
probate court asked what evidence there was that the phone and e-mail messages, and
Craigslist ad, were not true. Mother did not believe there was enough evidence to show it
was true, adding that while a person came to court and said their name, there was no
proof that was who they really were. In addition, mother said she proved the text
messages and timestamps on the phone could be altered, she disproved Steven’s
credibility regarding cellphones, and she had seen hoax Facebooks all the time. She said
there was no way of knowing whether the Facebook account was hers, as there was no

23.
proof there were not two Facebooks, one that was hers and the other fake. Mother did
not think it likely she would have gone to this extreme to prove she took a drug test she
did not have to take. The probate court again emphasized it told her she did not have to
take the drug test and it would not order her to take one, and the fact was she chose to
take the tests. Mother agreed.
The probate court stated its decision to terminate the guardianship was based on
the facts mother was clean, working, and nearby, things seemed to be going well, and
grandmother would be around. Mother did not see how they were using the declaration
from a person who disappeared. The probate court explained evidence was presented that
the person was unavailable, and she did not object; instead, mother agreed the person was
not available. The probate court added it granted temporary guardianship to grandmother
because it was concerned mother defrauded the court and “caused a result other than what
the result would have been.” Mother did not see how defrauding the court could be
considered detriment. The probate court answered it would be a detriment to the boys if
their mother was using methamphetamine and she was saying that was not the case.
After a break, the probate court announced its decision from the bench. The
probate court stated it was faced with a determination whether an unknown person
created “this situation” by claiming mother defrauded the court by having someone else
take drug tests she agreed to take, or whether mother really had someone else take the
drug tests, which led to the court dismissing the original guardianship. The court found
there were overwhelming clear and convincing evidence someone did not attempt to
frame mother by creating massive numbers of e-mails to mislead the court. Moreover,
there was evidence from the prior guardianship mother had some dirty tests and a clean
test, and while mother’s testimony was that she was not a drug abuser, methamphetamine
is highly addictive, and the addiction remains.
The probate court could not accept mother’s explanations that the court was
defrauded by the texts between mother and Marcie. Instead, there was clear and

24.
convincing evidence mother did not take the tests and had she taken them, she would
have been dirty because “a fail test is a dirty test.” Based on the e-mails, mother knew
she would test dirty and her only hope of terminating the prior guardianship was to have
clean tests, so she took it upon herself to have Marcie take the tests. The probate court
recognized section 3041.5 indicated a positive test alone was insufficient, but that was
one positive test, not multiple positive tests, and the fact mother defrauded the court
shows mother is not prepared to have custody of the boys. Accordingly, the probate
court denied mother’s petition and granted grandmother’s petition for guardianship.
The probate court stated it was not going to tell mother she would never regain her
children, because she had the ability to create the appropriate circumstances and restore
the court’s confidence in her and her decision making. Therefore, the probate court
believed it was in the boys’ best interest to remain guardians of grandmother, who would
have discretion over mother’s visits. Aitchison asked the probate court to continue its
order allowing father to have unrestricted contact with the boys at grandmother’s
discretion. The court stated it would make that order, but if anything ended up “in a
family court situation,” it would defer to the family court on that issue if necessary.
The probate court later signed a written order denying mother’s petition to
terminate the guardianship and granting grandmother’s petition for guardianship,
prepared by Aitchison, consistent with its oral ruling.9
DISCUSSION
I. General Legal Principles and the Standard of Review
The Probate Code provides that “[a] relative or other person on behalf of the minor
… may file a petition for the appointment of a guardian of the minor.” (Prob. Code,

9 Mother appeals from this order. We understand the order granting grandmother’s
petition for guardianship to be an order granting letters of guardianship, and the order
denying mother’s petition to terminate the guardianship to be a refusal to grant an order
revoking letters of guardianship, under Probate Code section 1301, subdivision (a).

25.
§ 1510, subd. (a).) “The probate court may appoint a guardian ‘if it appears necessary or
convenient.’ (Prob. Code, § 1514, subd. (a).)” (Guardianship of Ann S. (2009)
45 Cal.4th 1110, 1122, fn. omitted (Ann S.).) The circumstances of the proposed
guardianship may be investigated by a court investigator. (Prob. Code, § 1513, subd. (a);
Ann S., at p. 1122.) A temporary guardianship may be established pending the
appointment of a permanent guardian. (Prob. Code, § 2250 et seq.; Ann S., at p. 1122,
fn. 3.)
“Early authorities held that in contested guardianship cases, parents were entitled
to retain custody unless affirmatively found unfit. [Citation.] However, the unfitness
standard fell out of favor and the best interest of the child, as determined under the
custody statutes, became the controlling consideration. [Citations.] The Probate Code
now specifies that the appointment of a guardian is governed by the Family Code
chapters beginning with sections 3020 and 3040.” (Ann S., supra, 45 Cal.4th at
pp. 1122–1123; see Prob. Code, § 1514, subd. (b)(1).)
“Family Code section 3020, subdivision (a) declares that ‘the health, safety, and
welfare of children shall be the court’s primary concern in determining the best interest of
children when making any orders regarding the physical or legal custody or visitation of
children.’ Under Family Code section 3040, subdivision (a), parents are first in the order
of preference for a grant of custody, but ‘the court and the family’ are allowed ‘the widest
discretion to choose a parenting plan that is in the best interest of the child.’ (Fam. Code,
§ 3040, [former] subd. (b).)” (Ann S., supra, 45 Cal.4th at p. 1123.)
Section 3041 generally precludes an award of custody to a nonparent over a
parent’s objection unless the trial court finds by clear and convincing evidence that
granting custody to the parent would be detrimental to the child and that granting custody
to the nonparent is required by the child’s best interest. (§ 3041, subds. (a) & (b).) “As
used in this section, ‘detriment to the child’ includes the harm of removal from a stable
placement of a child with a person who has assumed, on a day-to-day basis, the role of

26.
the child’s parent, fulfilling both the child’s physical needs and the child’s psychological
needs for care and affection, and who has assumed that role for a substantial period of
time. A finding of detriment does not require a finding of unfitness of the parents.”
(§ 3041, subd. (c).) If the court finds the person to whom custody may be given already
has assumed the day-to-day role of the parent of the minor, as described in subdivision
(c), ante, “this finding shall constitute a finding that the custody is in the best interest of
the child and that parental custody would be detrimental to the child absent a showing by
a preponderance of the evidence to the contrary.” (§ 3041, subd. (d).)
“When the court appoints a guardian, the authority of the parent ‘ceases.’
[Citation.] The court has discretion to grant visitation [citation], but otherwise parental
rights are completely suspended for the duration of a probate guardianship [citation]. The
guardian assumes the care, custody, and control of the child.” (Ann S., supra, 45 Cal.4th
at pp. 1123–1124.) Once established, either voluntarily or involuntarily, a permanent
guardianship continues until it is terminated. (Guardianship of Zachary H. (1999)
73 Cal.App.4th 51, 61.) This occurs when the ward attains majority, dies, is adopted, or
becomes emancipated. (Ibid.; Prob. Code, § 1600.) In addition, on petition of the
guardian, parent, or ward, the court may terminate the guardianship if it determines
termination is in the ward’s best interest. (Prob. Code, § 1601.)
An order appointing a guardian is reviewed for abuse of discretion.
(Guardianship of Morris (1951) 107 Cal.App.2d 758, 762–763.) When applying this
standard of review, the superior court’s “findings of fact are reviewed for substantial
evidence, its conclusions of law are reviewed de novo, and its application of the law to
the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court
(2008) 43 Cal.4th 706, 711–712, fns. omitted.) Thus, “ ‘ “[t]he abuse of discretion
standard measures whether, given the established evidence, the lower court’s action ‘falls
within the permissible range of options set by the legal criteria.’ [Citation.]” ’
[Citations.] We do not defer to the trial court’s ruling when there is no evidence to

27.
support it.” (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452.) However,
“ ‘ “[w]hen two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial court.” ’
[Citations.] The burden is on the complaining party to establish abuse of discretion.
[Citations.] The showing on appeal is insufficient if it presents a state of facts which
simply affords an opportunity for a difference of opinion.” (In re Marriage of Rosevear
(1998) 65 Cal.App.4th 673, 682.)
As for mother’s contentions that certain statutes under the Probate Code are
unconstitutional, the constitutionality of statutes is a question of law, which we review de
novo. (Vergara v. State of California (2016) 246 Cal.App.4th 619, 642.) We review the
trial court’s rulings on the admissibility of evidence for abuse of discretion. (Tudor
Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.)
Mother asks us to review the entire matter de novo on the ground she was
deprived of her fundamental right to parent. While mother is correct that she has a
fundamental right “to make decisions concerning the care, custody and control of [her]
children” (Troxel v. Granville (2000) 530 U.S. 57, 66), application of the clear and
convincing standard of proof is sufficient “to protect the fundamental rights of parents in
all cases involving a nonparent’s bid for custody” (Guardianship of Phillip B. (1983)
139 Cal.App.3d 407, 421).
We note that in reviewing mother’s claims of error, our review is constrained by a
basic precept of appellate law—while appellants must raise in the trial court any issue
they wish to have an appellate court consider, mother did not raise in the probate court
any question presented on appeal.
“Points not raised in the trial court will not be considered on appeal.” (Hepner v.
Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486; Dimmick v. Dimmick (1962)
58 Cal.2d 417, 422; Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853 [constitutional
questions are forfeited in civil cases if not first raised in trial court]; see In re Cavanaugh

28.
(1965) 234 Cal.App.2d 316, 321 [claims of trial judge bias or prejudice forfeited if not
raised before matter submitted for decision in trial court]; see also Evid. Code, § 353,
subd. (a) [erroneous admission of evidence forfeited unless record discloses the issue was
properly raised in the trial court].) “Even a constitutional right must be raised at the trial
level to preserve the issue on appeal.” (In re Marriage of Fuller (1985) 163 Cal.App.3d
1070, 1076; accord, United States v. Olano (1993) 507 U.S. 725, 731.)
“ ‘The rule is founded upon considerations of practical necessity in the orderly
administration of the law and fairness to the court and the opposite party, and upon the
principles underlying the doctrines of waiver and estoppel.’ ” (Glendale Unified School
District v. Vista del Rossmoyne Co. (1965) 232 Cal.App.2d 493, 496; accord, People v.
Saunders (1993) 5 Cal.4th 580, 590.) The “general rule is especially true when the
theory newly presented involves controverted questions of fact or mixed questions of law
and fact.” (Panopulos v. Maderis (1956) 47 Cal.2d 337, 341.) An exception: When the
question is one of law only and is based on undisputed facts, an appellate court has
discretion to consider the issue for the first time on appeal. (Ward v. Taggart (1959)
51 Cal.2d 736, 742; Gilliland v. Medical Board (2001) 89 Cal.App.4th 208, 219.)
Mother’s self-represented status does not relax either our discretion or the
permissible scope of our review. Neither may we hold litigants in propria persona to a
different standard than we hold attorneys. (Cf. Rappleyea v. Campbell (1994) 8 Cal.4th
975, 985 [“requiring or permitting exceptional treatment of parties who represent
themselves would lead to a quagmire in the trial courts, and would be unfair to the other
parties to litigation”].) While a litigant has a right to act as her own attorney, in doing so,
she “ ‘ “should be restricted to the same rules of evidence and procedure as is required of
those qualified to practice law before our courts; otherwise, ignorance is unjustly
rewarded.” ’ ” (City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819,
disapproved on another ground in Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 134‒135
& fn. 4.)

29.
 Keeping these principles in mind, we turn to mother’s claims.
II. Notice of Temporary Guardianship Hearing
As we have stated, Probate Code section 2250, subdivision (a)(1) allows a party
petitioning for appointment of a guardian to also petition for appointment of a temporary
guardian. Here, grandmother petitioned for temporary guardianship and asked the
probate court to rule on her petition without notice to mother based on grandmother’s
concern mother would hide the boys or remove them from the county. The probate court
granted both her request and her petition. Grandmother retained temporary guardianship
of the boys until the probate court granted her petition for permanent guardianship.
Probate Code section 2250, subdivision (e)(1) requires that notice of the hearing
on the petition for temporary guardianship be given to the parents at least five court days
before the hearing “[u]nless the court for good cause otherwise orders.” Mother contends
this subdivision is unconstitutionally vague because it does not state what constitutes
“good cause,” citing the principle a criminal law may be invalidated for vagueness when
it fails “to provide the kind of notice that will enable ordinary people to understand what
conduct it prohibits.” (City of Chicago v. Morales (1999) 527 U.S. 41, 56; Sessions v.
Dimaya (2018) 138 S.Ct. 1204, 1212 [“void-for-vagueness doctrine” applied to criminal
statutes “guarantees that ordinary people have ‘fair notice’ of the conduct a statute
proscribes”].) She further argues that even if “good cause” is sufficiently defined, it was
applied to her in a manner that deprived her of her due process rights.
We need not decide the issue, however, because orders granting letters of
temporary guardianship are not appealable. (Prob. Code, § 1301, subd. (a).)
Accordingly, mother may not raise on appeal issues regarding notice of the temporary
guardianship.10 Moreover, even if the probate court erred in dispensing with notice, the

10 We note the Judicial Council adopted a rule of court that establishes uniform
standards for good cause exceptions to the notice requirement, as required by Probate
Code section 2250, subdivision (k). Rule 7.1012 of the California Rules of Court states

30.
issue was rendered moot when the probate court granted grandmother’s petition for
guardianship.
III. Constitutionality of Probate Guardianships
Mother contends that because guardianship proceedings involve the potential loss
of parental rights, the proceeding below was a criminal or quasi-criminal matter that, at a
minimum, gave her the rights to confront witnesses and secure an attorney. Mother
asserts she was deprived of those rights when she was unable to confront Marcie and
“was tricked” into agreeing Marcie was an unavailable witness. She also asserts the
hearsay exception for an unavailable witness was improperly applied because
grandmother did not exercise diligence in attempting to have Marcie’s declaration
authenticated and the declaration was not credible. Mother asks us to either: (1) “strike
down a severable portion of the [P]robate [C]ode and all case law standing for the
proposition that a parent loses constitutional defendant rights simply because the case
against them is stylized as a guardianship proceeding, rather than a Dependency Court or
Family Law proceeding”; or (2) establish a Probate Code guardianship proceeding that
“carries with it the right to secure an attorney, and the right to confront one’s accuser.”
We decline mother’s invitation. First, mother does not identify what portions of
the Probate Code she contends are unconstitutional. She cites only Probate Code
section 1516.5, subdivision (a), which allows for the termination of parental rights after
the child has been in the guardian’s physical and legal custody for two years and the court
finds the child would benefit from being adopted by the guardian, considering all factors

the rule provides uniform standards for the good cause exception to the notice
requirement and provides that good cause “must be based on a showing that the exception
is necessary to protect the proposed ward or his or her estate from immediate and
substantial harm.” (Cal. Rules of Court, rule 7.1012(a) & (b).) The rule lists five
situations in which good cause may be shown, including, as applicable here, harm that a
person entitled to notice might do to the proposed ward if notice is given, including
abduction. (Id., rule 7.1012(d).)

31.
relating to the child’s best interest, including the nature and extent of the parties’
relationships. Our Supreme Court, however, has held this section is facially
constitutional, even though it does not require a current showing of parental unfitness.
(Ann S., supra, 45 Cal.4th at pp. 1118‒1119.) Moreover, this statute is inapplicable to
mother, as there has never been an adoption proceeding and her parental rights have not
been terminated. Instead, as the probate court informed mother, her rights had merely
been suspended and may be reinstated on evidence restoring the probate court’s
confidence in her. While guardianship proceedings offer fewer protections for parental
interests than dependency proceedings, as explained in Guardianship of Christian G.
(2011) 195 Cal.App.4th 581, 596‒602, she cites no authority for the proposition that
guardianship proceedings should be treated as criminal or quasi-criminal matters.
Mother’s complaints appeared focused on her lack of an attorney and the inability
to confront and examine Marcie. With respect to the right to secure an attorney, mother
was given the opportunity to obtain one, but she decided against it. Thus, mother was not
deprived of counsel. To the extent she is claiming she was entitled to a court-appointed
attorney, she did not request one and even if she had, declining to appoint one does not,
of itself, violate due process. (Guardianship of H.C. (2011) 198 Cal.App.4th 1235,
1245‒1246.)
While mother did not have an express constitutional right to confront and examine
witnesses as that right is confined to criminal proceedings, “in civil proceedings a party
has a due process right under the Fifth and Fourteenth Amendments to the federal
Constitution to cross-examine and confront witnesses.” (In re Mary S. (1986) 186
Cal.App.3d 414, 419; David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777.)
But, as we have stated, a party who does not timely assert their rights, even constitutional
ones, forfeits them. (People v. $17,522.08 United States Currency (2006) 142
Cal.App.4th 1076, 1084 [right to a jury trial].) “A party on appeal cannot successfully

32.
complain because the trial court failed to do something which it was not asked to do.”
(Farmer Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal.App.4th 976, 993.)
Here, mother never objected to the admission of Marcie’s declaration on any
ground, let alone a constitutional one. Mother contends she was deprived of her right of
confrontation because the probate court improperly admitted and relied on evidence she
hired Marcie to take the hair follicle tests on her behalf, namely, Marcie’s declaration and
attached exhibits, as well as the Facebook and text messages. She asserts the declaration
is inadmissible hearsay and was never authenticated, and there was insufficient evidence
Marcie was an unavailable witness. Mother further argues Marcie’s declaration does not
bear the indicia of reliability because it does not state Marcie was willing to testify and
the alleged Facebook and text messages were not attached to it or mentioned in it.
Mother asks us to strike Marcie’s declaration and all evidence attributed to her as hearsay
and lacking foundation.11
We are constrained, however, by mother’s failure to object to this evidence on any
of these bases. As mother admits, she agreed Marcie was an unavailable witness. While
she claims she was tricked into making this agreement, there is no evidence in the record
to support this contention. Mother also contends it “is legally impossible for the parties
to stipulate to ‘unavailable witness’ in the constitutional sense.” But she does not cite
any authority to support this contention.
Mother asserts as a self-represented party, she could not be expected to understand
what an unavailable witness finding meant or that the probate court was going to admit

11 Mother notes the Facebook and text messages are not in the appellate record. She
fails to recognize that it is the appellant’s responsibility to provide an adequate record on
appeal. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295‒1296 [to overcome
presumption on appeal that an appealed judgment or order is presumed correct, appellant
must provide adequate record demonstrating error].) When her attorney completed the
notice designating the record on appeal, he did not designate any exhibits to be included
in the clerk’s transcript.

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otherwise inadmissible hearsay for the purpose of terminating her fundamental right to
custody. But as we have explained, it is well established that “[i]n propria persona
litigants are entitled to the same, but no greater, rights than represented litigants and are
presumed to know the [procedural and court] rules.” (Wantuch v. Davis (1995)
32 Cal.App.4th 786, 795.)
Mother’s failure to raise the issues she now claims bar admission of Marcie’s
declaration and supporting evidence, such as whether grandmother used diligence to
obtain Marcie’s testimony and whether Marcie’s declaration bore an indicia of reliability,
precludes our review of these claims, as any argument concerning admissibility of
evidence survives review on appeal “only if the record showed that the appropriate
objection was made and rejected.” (Broden v. Marin Humane Society (1999)
70 Cal.App.4th 1212, 1227; Evid. Code, § 353, subd. (a).)
IV. The Expert Witness
Mother contends we should strike Steven’s testimony about the alleged Facebook
and text messages because: (1) Steven was not properly designated as an expert since
there was no exchange of expert witness information as provided in Code of Civil
Procedure section 2034.210;12 (2) he did not comply with the Kelly/Frye standard
because he was not a communications technology expert and did not examine the actual
electronic communications;13 (3) the secondary evidence rule of Evidence Code

12 Code of Civil Procedure section 2034.210 provides that a party may obtain
discovery by demanding all parties simultaneously exchange information concerning
their expert trial witnesses, while Code of Civil Procedure section 2034.260,
subdivisions (b) and (c) set out what must be included in the exchange of expert witness
information. These statutes do not apply here, as neither mother nor grandmother
demanded discovery concerning expert witnesses.
13 “Under the Kelly-Frye rule, evidence based on a new scientific method of proof is
admissible only upon a showing that the procedure has been generally accepted as
reliable in the scientific community in which it was developed. [Citations.] The test is
usually applied to novel devices or processes involving the manipulation of physical
evidence ….” (In re Amber B. (1987) 191 Cal.App.3d 682, 686, citing People v. Kelly

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section 1521 required production of the electronic devices or, at a minimum, the actual
phone and Facebook records;14 and (4) he “failed to disclose a fatal conflict of interest,
i.e. that he is the husband of [grandmother]’s counsel.”
On the last contention, Steven did disclose he was Aitchison’s husband at the
outset of his testimony. While mother objected at one point to Steven’s testimony on the
ground he did not have personal knowledge regarding cellphones, mother failed to object
on the ground that Steven had a conflict of interest or on any of the other grounds she
now raises. Accordingly, she forfeited her claims of error with respect to Steven’s
testimony.
V. The Award of Guardianship to Grandmother
Mother contends that even if she used drugs and defrauded the probate court by
hiring a person to take the hair follicle tests, there was insufficient evidence to justify an
award of guardianship to grandmother. Specifically, mother asserts that defrauding the
court is an offense against the court, not the children, and therefore should not be
considered in determining her parental fitness. Mother reasons that when the basis for
the probate court’s custody decision is removed, that leaves only the finding she “used
drugs one time and nothing else.” She argues that under section 3041.5, a positive test
result cannot by itself constitute grounds for an adverse guardianship decision, and to
award custody adverse to her, the probate court was required to find she engaged in the
habitual, frequent or continual illegal use of controlled substances or was convicted for

(1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923) 293 F. 1013.) The rule
would not apply here, as Steven’s testimony did not involve a new scientific method of
proof.
14 Evidence Code section 1521 is the Secondary Evidence Rule and provides that
“[t]he content of a writing may be proved by otherwise admissible evidence.” (Evid.
Code, § 1521, subds. (a) & (d).) Steven’s testimony, however, was not used to prove the
content of the Facebook and text messages or the emails, but rather to prove that these
items were not fabricated.

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the illegal use or possession of a controlled substance, neither of which was supported by
the evidence.15
First, the probate court made clear it did not order mother to submit to hair follicle
testing. If it had, it would have erred, since the federal standards California courts are
required to follow in section 3041.5 only allow the court to order urine tests. (Deborah
M. v. Superior Court (2005) 128 Cal.App.4th 1181, 1193‒1194.) Since the probate court
did not order mother to drug test, section 3041.5 does not apply here and, contrary to
mother’s argument, the probate court was not required to determine whether mother
engaged in “the habitual, frequent, or continual illegal use of controlled substances.”
(§ 3041.5.)
Mother’s assertion the probate court relied solely on a presumed positive drug test
in granting grandmother guardianship is without merit. The probate court stated it was
not relying on a single positive test, but rather multiple positive tests, as well as its
finding mother defrauded the court by submitting false evidence of negative hair follicle
tests, which caused it to terminate the prior guardianship and showed mother was not
prepared to have custody of the boys. While mother contends her offense, if any, was

15 As relevant to mother’s arguments, section 3041.5 provides: “In any …
guardianship proceeding brought under the Probate Code, the court may order any person
who is seeking custody of, or visitation with, a child who is the subject of the proceeding
to undergo testing for the illegal use of controlled substances … if there is a judicial
determination based upon a preponderance of evidence that there is the habitual, frequent,
or continual illegal use of controlled substances … by the … person seeking
guardianship, or person seeking visitation in a guardianship. This evidence may include,
but may not be limited to, a conviction within the last five years for the illegal use or
possession of a controlled substance. The court shall order the least intrusive method of
testing for the illegal use of controlled substances … by … the … person seeking
guardianship, or person seeking visitation in a guardianship. If substance abuse testing is
ordered by the court, the testing shall be performed in conformance with procedures and
standards established by the United States Department of Health and Human Services for
drug testing of federal employees…. A positive test result … shall not, by itself,
constitute grounds for an adverse custody or guardianship decision….”

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against the court, not the children, paying someone to take a drug test in mother’s place in
order to get the court to terminate a guardianship shows not only poor judgment, but
mother’s inability to be open about her drug use, which could have a negative effect on
the boys if they were placed with her. The juvenile court reasonably could find it would
be detrimental for mother to have custody of the boys and granting custody to
grandmother, who had been the boys’ guardian for nearly three years before guardianship
was terminated in March 2019, would be in their best interest.
VI. Consideration of Father’s History of Domestic Violence
Mother asserts the probate court failed to consider that father had been recently
convicted of domestic violence against mother and both a criminal protective order and
family law domestic violence restraining order were issued against him. She further
asserts the probate court knew father lived with grandmother, yet it failed to presume it
would be against the boys’ best interest to live with father as required by section 3044.
She argues had it properly followed section 3044,16 the probate court would have made
the required presumption and never awarded custody to grandmother, at least without
some effort to rebut the mandatory presumption. On this basis, she asks us to grant her
petition to terminate the guardianship.
Section 3044 establishes a rebuttable presumption that it is not in the child’s best
interest to award joint or sole legal or physical custody to a parent who a court has found
to have committed domestic violence against the other parent within the previous five

16 Mother also cites section 3011, subdivision (a), which provides, in pertinent part,
that “[i]n making a determination of the best interests of the child in a proceeding
described in Section 3021, the court shall … consider all of the following: [¶] … [¶]
(2)(A) A history of abuse by one parent or any other person seeking custody against any
of the following: [¶] … [¶] (ii) The other parent.” Section 3011, however, does not
appear to provide to probate guardianship proceedings, as such proceedings are not listed
in section 3021. Moreover, father was not the party seeking custody of the boys.

37.
years. (§ 3044, subds. (a), (d)(2).) By its terms, it applies when a party is seeking
custody of the child. (§ 3044, subd. (a).)
The domestic violence restraining order certainly constitutes a court finding that
father committed domestic violence against mother. (See S.M. v. E.P. (2010)
184 Cal.App.4th 1249, 1267 [“a finding of domestic abuse sufficient to support a
[Domestic Violence Prevention Act] restraining order necessarily triggers the
presumption of section 3044”].) The statutory presumption is not triggered, however,
because father was not seeking custody of the boys. While mother claims the probate
court effectively gave custody to father when it gave grandmother custody because the
two live together, there is no evidence in the record father was living with grandmother.
For this reason, we reject mother’s claim.
DISPOSITION
The December 30, 2019 order is affirmed. Costs on appeal are awarded to
respondent.

DE SANTOS, J.
WE CONCUR:

MEEHAN, Acting P.J.

SNAUFFER, J.

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