Wednesday, August 12, 2009
Page 3
Appellate Court Says ‘No Evidence’ Octuplets Need Guardian ad Litem
By SHERRI M. OKAMOTO, Staff Writer
Nadya Suleman’s 7 1/2-month-old octuplets do not need a guardian to watch over their financial interests, the Fourth District Court of Appeal ruled yesterday.
The ruling by Div. Three came five days after the panel issued an order staying Orange Superior Court Judge Gerald G. Johnston’s order appointing a guardian ad litem for the infants. Granting Suleman’s petition for writ relief in its unpublished decision yesterday, the panel emphasized that “no evidence in the record” supported the appointment.
Paul Petersen, a former Disney Mouseketeer who is an advocate for the fair treatment of children in entertainment, requested that a guardian be appointed in order to “provide assurance that the children are not exploited” by their mother, and to “protect their potential business opportunities, i.e. possible lucrative endorsement[s] that may arise as a result of their unique status.”
He asserted that Suleman had entered into contracts to sell photographs and video of her children and for a documentary series filming their lives. Suleman moved to dismiss the petition, arguing Petersen lacked standing and that the proposed guardianship would not be in the best interests of the minors.
Sua Sponte Appointment
At a subsequent hearing, Petersen conceded that he did not have sufficient evidence to support an ex parte request for a temporary guardianship but the trial court, acting sua sponte, appointed a guardian “to report to the court as an objective voice to provide information as to what is in the best interest of the children.”
Johnson explained that “when I have assertions there may be some issues relating to their financial protection, I view it as incumbent upon the court to take some action,” and determined that appointment of a guardian would be “the least intrusive way to do this.”
Probate Code Sec. 1003 allows a trial court to appoint a guardian at any stage of a proceeding to represent the interests of a minor “on its own motion or on request of a personal representative, guardian, conservator, trustee, or other interested person, if the court determines that representation of the interest otherwise would be inadequate.”
Writing for the appellate court, Justice Richard D. Fybel said this statutorily required showing “has manifestly not been made.”
Joined by Justices William F. Rylaarsdam and Eileen C. Moore, Fybel brushed aside the proffered supporting evidence for Petersen’s motion, which consisted of several articles copied from websites addressing Suleman’s alleged contracts.
Inadmissible Evidence
Fybel noted that none of the articles had been authenticated and were inadmissible hearsay. Even if admitted for the truth of the statements contained within them, Fybel concluded that they disclosed no information regarding Suleman’s ability to represent her children’s interests.
He then criticized Petersen’s reply as suggesting the appointment order could be based on statements and argument of counsel wholly unsupported by any admissible evidence.
Additionally, although Sec. 1003 does not specify any particular notice period, Fybel said adequate notice is required to meet due process standards.
As Petersen had requested the immediate appointment of a guardian ad litem for the first time in the middle of a hearing, Fybel posited that Suleman “was denied a most basic constitutional right, namely, notice.”
The justices directed the trial court to vacate its order appointing a guardian for the children and dissolved its previously issued stay. The next probate court hearing is scheduled for Aug. 20.
Suleman was represented by Fullerton attorney Arthur J. LaCilento. John P. Deily, Cynthia V. Roehl and Michele Carmeli of the Deily Law Firm, together with Gloria Allred of Allred, Maroko & Goldberg, were counsel for Petersen.
The case is Suleman v. Superior Court (Petersen), G042399.
Copyright 2009, Metropolitan News Company