In re V.P. CA4/1

Filed 4/14/22 In re V.P. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D079094
In re V.P., a Person coming under
the Juvenile Law.

L.L. et al., (Super. Ct. No. EFL002713)

Appellants,

v.

S.P.,

Respondent.

APPEAL from a judgment of the Superior Court of Imperial County,
William D. Lehman, Judge. Affirmed.
John L. Dodd & Associates and John L. Dodd; Marcus Family Law
Center, Ethan Marcus and Erin K. Tomlinson, for Appellants.
Suzanne M. Davidson, under appointment by the Court of Appeal, for
Respondent.
This is the second appeal brought by L.L. and H.L. (Grandparents)
involving the custody of their grandson, V.P., against V.P.’s father, S.P.
(Father). After their petition to terminate Father’s parental rights for having
abandoned V.P. was unsuccessful, Grandparents sought legal and physical
custody of V.P. as his presumed parents. The trial court held a hearing
regarding Grandparents’ custody and parentage claims and awarded Father
sole custody. Grandparents then filed several ex parte motions, a motion for
reconsideration, and a motion for a new trial, which were denied.
Grandparents appeal. They contend the trial court violated their right
to due process by refusing to hold an evidentiary hearing on their custody
and parentage claims. We conclude Grandparents have not shown a due
process violation because they lack standing as nonparents to initiate this
action seeking custody of their grandson. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Portions of this section are taken from our prior opinion in this matter.

(See In re V.P. (Sept. 20, 2021, D078780) [nonpub. opn.] (In re V.P.).)1
Father and V.P.’s mother (Mother) were never married. In 2011,
Mother was diagnosed with synovial cancer, a rare form of cancer which
primarily affects the arms and legs. Mother became pregnant with V.P. in
October 2017. The cancer progressed to stage four by the time she was five
months pregnant, and she was forced to deliver V.P. three months
premature. Father was present for V.P.’s birth and signed a voluntary
declaration of paternity the day after V.P. was born.
V.P. was hospitalized in the neonatal intensive care unit (NICU) for
two months because he was born premature. He suffered from lesions on his
brain, holes in his lungs, undeveloped skin, and he risked developing cerebral

1 At Grandparents’ request, we take judicial notice of the record on
appeal in our prior opinion. (Evid. Code, §§ 452, subd. (d)(1), 459; Cal. Rules
of Court, rule 8.252(a)(2); People v. McCarthy (2016) 244 Cal.App.4th 1096,
1100, fn. 2.)
2
palsy, deafness, and blindness. Father visited V.P. while he was in the NICU
several times.
Once V.P. was released from the hospital, he began living in San Diego
with Mother and Grandparents where he could continue to be treated by the

same medical providers.2 Doctors had created a multi-year medical plan for
him, which included ongoing evaluations and diagnostics.
Mother died when V.P. was eight months old, and Grandparents moved
with V.P. to their home in Imperial Valley. Although Father planned on
taking V.P. to live with him in Arizona after Mother’s death, he believed it
was in V.P.’s best interests to continue living with Grandparents until V.P.
finished his medical treatments. While in their care, Grandparents were
responsible for taking V.P. to his medical appointments and supported V.P.
financially. Although Father did not attend the appointments, Grandparents
regularly updated him about V.P.’s progress. According to Father, he offered
to provide financial support, but Grandparents told him it was not needed.
From the time of Mother’s death to August 2019, Father visited V.P. for
a few days at least once a month. Father’s understanding was V.P. would
start living with him full-time once V.P. had completed his physical therapy
appointments in August or September 2019. Once August 2019 arrived,
however, Father agreed to a transition period at Grandparents’ request. In
September 2019, V.P. began staying with Father every other week.
On March 16, 2020, Father and Grandparents had an argument about
V.P.’s living arrangements. Father was concerned travel between Arizona
and California could be restricted due to the escalating coronavirus pandemic
and result in him becoming separated from his son. Grandparents ultimately

2 Grandparents maintained an apartment in San Diego and a home in
Imperial Valley.
3
agreed to let Father take V.P. to Arizona, although they were upset V.P. had
no clear date of return.
On March 21, 2020, Grandparents drove to Arizona for an agreed upon
overnight visit with V.P. One day before, Grandparents had filed a petition
to determine a parental relationship (the parentage case) in the trial court

under Family Code section 7630.3 In the parentage case, they sought legal
and physical custody of V.P. as his “prospective adoptive parents” and a
determination that Father is not V.P.’s parent.
Father was unaware of the parentage case when he released V.P. to
Grandparents on March 21, 2020, believing V.P. would be returned the next
day. Instead, Grandparents took V.P. with them to California, only
informing Father of what they had done after they arrived home.
Grandparents filed a petition under section 7822 several days later seeking to
declare V.P. free from Father’s custody and control and requesting to adopt

him (the adoption case).4
In response to Grandparents’ petition to determine a parental
relationship, Father requested legal and physical custody of V.P. Father
stated in his declaration that after taking V.P. back to California and
initiating family court proceedings, Grandparents were denying his requests
for visitation with his son.

3 Undesignated statutory references are to the Family Code.

4 A petition to free a child from a parent’s custody and control may be
granted where “[o]ne parent has left the child in the care and custody of the
other parent for a period of one year without any provision for the child’s
support, or without communication from the parent, with the intent on the
part of the parent to abandon the child.” (§ 7822, subd. (a)(3).)
4
 On June 2, 2020, the trial court issued a temporary emergency order
providing Grandparents with V.P.’s legal and physical custody and allowing
Father regular visits. The court also set the adoption case for trial,
confirming it would proceed on the adoption case first.
After holding a trial in the adoption case, the trial court denied
Grandparents’ petition to free V.P. from Father’s parental custody and
control on March 17, 2021, finding no clear and convincing evidence Father
had abandoned V.P. The court noted Father had been involved in V.P.’s life
since birth, leaving V.P. in Grandparents’ care solely on a temporary basis so
V.P. could receive medical treatment. This court affirmed that ruling on
appeal. (In re V.P., supra, D078780.)
On April 1, 2021, the trial court held a hearing regarding the parties’
competing custody requests. The court addressed at the outset of the hearing
whether the adoption and parentage cases had been consolidated. Although
the caption in the judgment entered on March 17, 2021 identified the case
numbers for both the adoption case (case no. EAD000218) and the parentage
case (case no. EFL002713), and referred to them as “consolidated,” the
judgment solely pertained to the issues raised in the adoption case. The
court clarified the cases had been consolidated “in effect,” meaning the court
would consider evidence presented in the adoption case in ruling on the
parentage case.
Regarding V.P.’s custody, although Grandparents’ counsel
acknowledged Father had parental rights, counsel contended Grandparents
should also be “treated as parents.” Counsel relied on the statutory
provisions for nonparent custody set forth in section 3041, contending
Grandparents were entitled to custody because they had provided V.P. with
his day-to-day care since birth, and it was in V.P.’s best interests to remain in

5
their care.5 Father’s counsel responded that Father had never abdicated his
parental role, and he was thus entitled to have V.P. returned to his custody.
After hearing the parties’ arguments, the trial court granted Father’s
request for sole custody. The court indicated that given the court’s earlier
finding in the adoption case that Father had not abandoned V.P., Father had
“been restored to his . . . parental rights.” The court also found no showing of
detriment by placing V.P. in Father’s custody, and that as the parent, Father
had superior rights to Grandparents. The court stated in closing: “[T]his
entire case has been a grotesque injustice since the child was taken from
[Father] really under false pretenses back in March [2020]. . . . And now a
year later we need to do what we can to rectify that situation.” In the
unsigned minute order awarding Father with sole custody, the court stayed

5 Section 3041 states in relevant part:
“(a) Before making an order granting custody to a person other than a
parent, over the objection of a parent, the court shall make a finding that
granting custody to a parent would be detrimental to the child and that
granting custody to the nonparent is required to serve the best interest of the
child. . . .
“(b) Subject to subdivision (d), a finding that parental custody would be
detrimental to the child shall be supported by clear and convincing evidence.
“(c) 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 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.
“(d) Notwithstanding subdivision (b), if the court finds by a
preponderance of the evidence that the person to whom custody may be given
is a person described in subdivision (c), 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.”
6
the order requiring Grandparents to transfer V.P.’s custody to Father for 30
days.
Grandparents then filed a “notice of intention to move for new trial; set
aside or vacate judgment; amend or vacate proposed statement of decision.”
They contended the trial court improperly resolved the parentage case based
on findings it made in the adoption case. They maintained the claims raised
in the parentage case “remain unadjudicated,” and they were denied their
right to a trial on these claims. In a later filing, Grandparents requested an
ex parte hearing for the court to extend the stay for requiring Grandparents
to transfer V.P.’s custody to Father, and to shorten the time for a hearing on
their pending requests. In support of their requests, Grandparents
submitted L.L.’s declaration, V.P.’s medical records, and three sets of points
and authorities.
During a hearing on April 27, 2021, the trial court revisited whether
the adoption and parentage cases had been consolidated. The court
reiterated the cases had been consolidated to the extent evidence lodged in
the adoption case could be considered by the court in the parentage case. The
court then denied Grandparents’ ex parte requests and request for
reconsideration, and vacated the hearing date for the new trial motion. The
court ordered Grandparents to return V.P. to Father no later than May 2,

2021.6
On June 23, 2021, the trial court denied Grandparents’ motion for a
new trial. In refusing to revisit the order awarding Father sole custody of

6 Although this court initially stayed the order requiring Grandparents
to transfer custody of V.P. to Father in response to Grandparents’ petition for
writ of supersedeas, this court ultimately denied the petition and dissolved
the stay on May 28, 2021. It appears V.P. was then returned to Father’s
home in Arizona and has remained there ever since.
7
V.P., the court stated: “The current Request for Order is the latest chapter in
the vexatious, abusive litigation brought by Petitioner grandparents. This
litigation has involved identical requests presented to multiple judicial
officers.” The court noted that while the appeal in the adoption case was
pending with this court, Grandparents had filed two additional cases: a
guardianship case and a case for grandparent visitation. The court further
determined that any additional requests for custody or visitation would be
stayed while the adoption case was pending on appeal.

Grandparents timely appealed.7
DISCUSSION
Grandparents contend the trial court denied them their right to due
process by rejecting the claims raised in the parentage action without holding
an evidentiary hearing. They assert the court “improperly conflated the
termination of parental rights issues in EAD000218 with the custody and
parentage issues in EFL002713, believing the case was ‘over’ as soon as it
denied the section 7822 petition.” They conclude the trial court denied them

7 Grandparents identify the trial court’s March 17, 2021 judgment
dismissing the adoption case as the judgment on appeal. However, this
judgment was the subject of their prior appeal (In re V.P., supra, D078780),
and Grandparents lack a legal basis to bring multiple appeals from the same
underlying judgment (Jordan v. Malone (1992) 5 Cal.App.4th 18, 21 [a party
is entitled to one appeal from the final judgment in an action.]). Accordingly,
we construe the appeal as being taken from the trial court’s April 1, 2021
order awarding Father sole custody of V.P. (Geffcken v. D’Andrea (2006) 137
Cal.App.4th 1298, 1307 [notice of appeal is to be liberally construed in favor
of its sufficiency, “ ‘so as to protect the right for appeal if it is reasonably clear
what appellant was trying to appeal from, and where the respondent could
not possibly have been misled or prejudiced.’ [Citation.]”]; see also Enrique
M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377-1378 [final custody
order is appealable].) Although the minute order awarding Father sole
custody is unsigned, the trial court clarified at a later hearing that it did not
contemplate further action and considered that order to be final.
8
their right to notice and an opportunity to be heard on the parentage case,
and further erred in denying their request for post-order relief.
In response, Father asserts Grandparents as nonparents lacked

standing to initiate custody proceedings in family court.8 We agree and
affirm the trial court’s custody order on this basis.
1. Relevant Legal Principles and Standard of Review
The trial court may make a child custody order “that seems necessary
or proper.” (§ 3022.) Legal custody of a child grants the custodian “the right
and the responsibility to make the decisions relating to the health, education,
and welfare of a child.” (§ 3003.) “The essence of custody is the
companionship of the child and the right to make decisions regarding his care
and control, education, health, and religion.” (Lerner v. Superior Court of
San Mateo County (1952) 38 Cal.2d 676, 681.)
Parents have a fundamental right to custody of their children.
(Santosky v. Kramer (1982) 455 U.S. 745, 753.) Consistent with this right,
courts apply a “parental preference doctrine” which provides that parents
generally have the right to custody of their children over a third party. (In re
B.G. (1974) 11 Cal.3d 679, 693-694, fn. 23.) However, this right is not
absolute and is balanced against a child’s “fundamental right . . . to ‘have a
placement that is stable [and] permanent.’ ” (In re Jasmon O. (1994) 8
Cal.4th 398, 419.)

8 Father did not raise this standing argument in the trial court.
Nevertheless, “ ‘ “ ‘contentions based on a lack of standing involve
jurisdictional challenges and may be raised at any time in the proceeding.’
[Citation.] “Lack of standing negates existence of a cause of action and is not
waived by failure to object; it can even be raised for the first time on appeal.”
[Citation.]’ [Citation.].” (Cummings v. Stanley (2009) 177 Cal.App.4th 493,
501.)
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 Section 3041 provides that before granting custody of a child to a
nonparent over the objection of a parent, the court must find clear and
convincing evidence custody to a parent would be detrimental to the child and
custody to the nonparent is in the best interest of the child. (§ 3041, subds.
(a), (b).) The finding of detriment must be supported by clear and convincing
evidence, but it does not require a showing of parental unfitness. (§ 3041,
subd. (c).) Section 3041 further provides that if a preponderance of the
evidence shows a nonparent has assumed the parental role for a substantial
period of time by providing a stable home where the child’s physical and
emotional needs are met, this establishes the required showing that
nonparental custody is in the best interest of the child and that parental
custody would be detrimental. (§ 3041, subds. (c), (d).) A parent may rebut
the evidence supporting custody with a nonparent by showing by a
preponderance of the evidence that there would be no detriment from
parental custody and that nonparental custody is not required to serve the
best interest of the child. (§ 3041, subd. (d).)
We generally review custody and visitation orders for abuse of
discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; In re Marriage of
Burgess (1996) 13 Cal.4th 25, 32.) However, “[m]atters presenting pure
questions of law, not involving resolution of disputed facts, are subject to the
appellate court’s independent review.” (Suarez v. City of Corona (2014) 229
Cal.App.4th 325, 332.) Standing is a question of law to which we typically
apply a de novo standard of review. (Fry v. City of Los Angeles (2016) 245
Cal.App.4th 539, 548-549.)

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2. Grandparents as Nonparents Lacked Standing to Initiate These
Custody Proceedings in Family Court

Grandparents initiated these custody proceedings in family court to
obtain custody of V.P. They asserted they were entitled to custody under
section 3041, as they had assumed the parental role of V.P. for a substantial
period of time, and had therefore established it was in V.P.’s best interests to
remain in their custody and a transfer of custody to Father would be
detrimental.
However, Grandparents lacked standing to initiate custody proceedings
in family court under section 3041. “The custody provisions of the Family
Code apply only in proceedings that are generally, if not invariably, initiated
by the parents of a child. . . . [T]hey have been held not to provide an
independent basis for subject matter jurisdiction. [Citation.] A nonparent
seeking custody therefore lacks standing to initiate a custody proceeding
under the Family Code. A guardianship petition under the Probate Code is
the only judicial means for a nonparent to obtain custody when the parents
have not themselves initiated a custody proceeding.” (Erika K. v. Brett D.
(2008) 161 Cal.App.4th 1259, 1269 (Erika K.).) In this case, since Father as
the parent did not initiate these proceedings, Grandparents as the
nonparents lacked standing “to initiate a custody proceeding under the
Family Code.” (Id. at p. 1269.) Instead, their remedy as nonparents seeking
custody of their grandson was to pursue a guardianship case in the probate
court. (Ibid.)
The circumstances considered by the appellate court in Erika K. are
instructive. There, after the biological mother initiated custody proceedings
to regain custody of her daughter who was in the care of a nonparent
caregiver, the trial court awarded the caregiver custody under section 3041

11
even though the caregiver did not separately petition for guardianship.
(Erika K., supra, 161 Cal.App.4th at pp. 1265-1266.) The appellate court
affirmed the custody award on appeal, concluding a guardianship petition
was not a prerequisite for nonparent child custody. (Id. at p. 1269.) In
reaching this conclusion, the court recognized guardianship petitions may be
a more prevalent mode for awarding child custody to a nonparent under
section 3041 as opposed to through family court proceedings, since section
3041 can only be raised by a nonparent in family court after a parent has
already initiated a custody case. (Erika K., at p. 1269.) Thus, unlike the
situation in Erika K., Grandparents in this case sought to initiate these
proceedings themselves, which they lacked standing to do.
Grandparents assert they have standing to initiate a custody action
under section 3041 because they qualify as V.P.’s “presumed parents.” They
contend that following the enactment in 2013 of section 7601, subdivision (c),
a child may have a parent and child relationship with more than two parents.
As such, any case that predates the current version of section 7601, such as
Erika K., has been superseded by the change in law.
Grandparents provide no authority, however, to support their assertion
that the amendments to section 7601 in 2013 have any effect on the
application of section 3041 in family court proceedings. For instance, while
Grandparents contend Erika K. is no longer good law because it predates the
amendments to section 7601 declaring that a child may have more than two
parents, nowhere in the Erika K. opinion does the appellate court discuss
section 7601 or whether a child may have a parent relationship with more
than two parents. (Erika K., supra, 161 Cal.App.4th at pp. 1265-1266.)
Overall, Grandparents have not provided any arguments to convince us that

12
in light of the changes in 2013 to section 7601, section 3041 now confers a
nonparent with standing to initiate custody proceedings in family court.
Grandparents’ additional contention that as “presumed parents” they
had standing to initiate family court proceedings under section 3041 is
contradicted by the plain language of the statute. The statute repeatedly
distinguishes between a “nonparent” and a “parent,” and section 3041,
subdivision (a) specifically provides for a custody award of a child to a “person
other than a parent” over the objection of a “parent.” Because section 3041 is
expressly confined to custody claims brought by nonparents, Grandparents’
contention they qualify as V.P.’s parents would render section 3041
inapplicable.
Moreover, Grandparents’ assertion they meet the test for presumed
parent status lacks merit. Section 7611, subdivision (d) provides presumed
parent status if “[t]he presumed parent receives the child into their home and
openly holds out the child as their natural child.” A person requesting
presumed parent status under section 7611, subdivision (d) must have a
“fully developed parental relationship” with the child. (R.M. v. T.A. (2015)
233 Cal.App.4th 760, 776, italics omitted.) A “caretaking role” is not enough.
(Id. at p. 777.) “By its terms, the statute requires an assumption of
responsibility for the child that rises to the level of receiving the child into
the home, and a commitment to the child demonstrated by an open
acknowledgement of the child as his or her own.” (Ibid.) Additionally,
although the statutory scheme allows for recognition of more than two
parents, courts will only do so in “ ‘ “rare cases” in which a child “truly has
more than two parents” who are parents ‘in every way.’ [Citation.]’
[Citation.]” (In re M.Z. (2016) 5 Cal.App.5th 53, 65.)

13
 Grandparents assert they meet the test of presumed parenthood
because they took V.P. into their home. They appear to concede, however,
that they did not hold out V.P. as their natural child. Instead, they contend
that although they are not V.P.’s biological parents, they may still be
considered as his presumed parents.
However, courts have rejected the application of presumed parent
status under section 7611, subdivision (d) where a grandparent assumed a
parental role but never claimed the child as their own. (In re Bryan D. (2011)
199 Cal.App.4th 127, 139-140; In re Jose C. (2010) 188 Cal.App.4th 147, 162
(Jose C.).) As explained by the appellate court in Jose C., although a
grandparent may act as the “functional equivalent” of a child’s parent, “that
alone does not satisfy the test for presumed [parent] status. Many people
may perform the function of a parent at various points in a child’s life,
including grandparents, stepparents, foster parents, extended family
members, and so on. Doing so does not make any of them a presumed parent.
That status is defined by statute, and it includes openly holding out the child
as one’s natural child. (Fam. Code, § 7611, subd. (d).).” (Jose C., at p. 162.)
Additionally, although biological ties to the child are not always a
prerequisite for establishing presumed parent status, the California Supreme
Court has applied section 7611, subdivision (d) presumed parent status to a
nonbiological parent in cases where there were no competing paternity
interests. For example, in In re Nicholas H. (2002) 28 Cal.4th 56, 63
(Nicholas H.), the Supreme Court determined a nonbiological father met the
requirements for presumed father status where no one had raised a
conflicting claim to being the child’s father and to do otherwise would produce
the “harsh result” of leaving the child fatherless. The Supreme Court
revisited the issue in Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 122-

14
123 (Elisa B.), a case involving two same sex parents only one of whom was
biologically related to the children. The high court determined the
nonbiological parent should be recognized as a presumed parent under
section 7611, subdivision (d), because a contrary finding would leave the
children without a father and impose the financial burden of supporting the
children on the county. (Ibid.)
In this case, V.P. is not fatherless. In fact, Father raised a competing
custody claim in response to Grandparents’ initiation of these proceedings,
asserting he was entitled to sole custody as V.P.’s father. Additionally, the
evidence does not support a finding that Father has abdicated his parental
role. As we explained in our prior opinion: “Father was not absent from
V.P.’s life while V.P. was in Grandparents’ care. Although Father did not
attend V.P.’s medical appointments, text messages in the record show Father
and Grandparents regularly communicated about V.P.’s health and progress.
Father also visited V.P. for a few days at least once [a] month after Mother’s
death, and Father provided for V.P.’s necessities when he was in his care.
Father’s visits with V.P. increased in August or September 2019, when V.P.
began to spend half of his time with Father in Arizona. Then, in March 2020,
when confronted with the possibility he would become separated from his son
because of the corona virus pandemic, Father drove from Arizona to retrieve
V.P. in California.” (In re V.P., supra, D078780.) Thus, unlike the
circumstances in Nicholas H. and Elisa B., the absence of a formal
declaration that Grandparents are V.P.’s presumed parents would not leave
V.P. without parental support, as Father has been supporting V.P. in his
capacity as a parent since V.P.’s birth.
In sum, Grandparents as nonparents lacked standing to initiate
custody proceedings in family court under section 3041. Their argument they

15
meet the requirements for presumed parent status renders section 3041
inapplicable, and in any event, they do not present a legally cognizable claim
to presumed parent status. Accordingly, Grandparents’ status as nonparents
and inability to establish standing to pursue their claims in family court is
fatal to their due process arguments.
DISPOSITION
The trial court’s custody order entered on April 1, 2021 is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

O’ROURKE, J.

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