Ramsden v. Peterson CA2/6 ( 2022 )

Filed 2/15/22 Ramsden v. Peterson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
TYSON RAMSDEN, 2d Civil No. B310832
(Super. Ct. No. 16FL03195)
Appellant, (Santa Barbara County)
v.
SADYE POWELL PETERSON,
Respondent.
Tyson Ramsden appeals from the order granting
Sadye Powell Peterson’s request to move their daughter, H.P.,
from California to Illinois. Ramsden contends: (1) the trial court
should not have allowed counsel for H.P. to make custody and
visitation recommendations, (2) the court erred when it permitted
H.P.’s counsel to introduce hearsay evidence, (3) the court applied
the wrong standard when granting Powell’s request, and (4) the
evidence was insufficient to support the order. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Powell gave birth to H.P. in 2012. In 2016, Powell
requested an order from the trial court that would permit her to
move to Arkansas with H.P. The court denied the request, but
did grant Powell primary physical custody of H.P.
The following year, Powell requested an order
permitting her to move with H.P. to Oklahoma, where her new
husband was stationed. The trial court denied the request, and
Powell elected to remain in California.
In May 2020, Ramsden’s then-girlfriend, S.S., called
Powell and said that Ramsden had assaulted her. H.P. saw the
assault, was afraid of her father, and wanted Powell to pick her
up. S.S. also said that Ramsden had recently driven while
intoxicated and hit a parked car while H.P. was in the vehicle.
Powell filed an emergency request to take exclusive
custody of H.P. The trial court denied the request and extended
the existing visitation schedule. The court said that if Child
Welfare Services (CWS) issued a safety plan, that plan should be
followed pending a hearing later that month.
At the hearing on the custody request, Ramsden and
Powell stipulated that counsel should be appointed for H.P. They
agreed that H.P.’s counsel should review the CWS plan and
“come back . . . with a recommendation.”
A few weeks later, H.P.’s appointed counsel told the
trial court that H.P. “loves [Ramsden] dearly but . . . does not feel
comfortable going [to his residence] during the week.” She asked
the court to change the existing custody arrangement so that
Ramsden would have custody of his daughter on alternating
weekends. Ramsden did not object to such an interim custody
order—one lasting “two weeks, or four weeks, or six weeks”—to
get H.P. “stabilized” again.
Powell subsequently filed another move-away
request. At a February 2021 hearing on the request, the parties
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stipulated that the trial court could take judicial notice of the
entire case file, which had been reviewed by counsel for H.P. and
included the CWS records. Ramsden later attempted to revoke
his stipulation, objecting that the CWS files lacked foundation
and contained hearsay. The court overruled Ramsden’s objection.
Ramsden also sought to disallow counsel for H.P.
from making visitation and custody recommendations. Powell
replied that such an objection was untimely since Ramsden had
previously stipulated that counsel could make such
recommendations. The trial court agreed and denied Ramsden’s
motion.
When the hearing continued, Powell testified about
the time S.S. asked her to pick up H.P. She said that H.P. was
crying during their entire drive home. The next day, Ramsden
called Powell and admitted that he had driven while intoxicated
with H.P. in the car. H.P. knew that her father was intoxicated,
and did not want to return to his house for several weeks.
Powell said that she had been married for more than
three years and wanted to live with her husband and H.P. in
Illinois. She said that Ramsden previously agreed to let H.P. live
with Powell in Oklahoma if she would allow H.P. to visit him
when he moved to Alabama. Ramsden revoked that agreement
when he and S.S. broke up after the May 2020 incident.
During his testimony, Ramsden admitted that he
drank alcohol and hit a curb while driving with H.P. in the car in
May 2020, but denied that he was drunk. Ramsden also
admitted that he and S.S. had verbal and physical altercations in
front of H.P., which he could tell made her uncomfortable.
At the conclusion of the hearing, the trial court
concluded that circumstances had changed sufficiently to permit
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granting Powell’s move-away request. The court also said that it
could grant the request under a best-interest-of-the-child
standard. Either way, the court did not place great weight on the
May 2020 incident. Rather, when it denied Powell’s previous
requests, her relationship with her husband was relatively new,
and there was some concern over whether it would continue.
That relationship had grown stronger over the ensuing three
years, and H.P. was increasingly bonded to her stepfather. In
contrast, H.P. had been attached to S.S., but she and Ramsden
had ended their relationship. H.P.’s best interests would thus be
best served by moving to Illinois with Powell. The court granted
Powell’s move-away request.
DISCUSSION
Custody and visitation recommendations
Ramsden first contends the trial court erred when it
permitted counsel for H.P. to make custody and visitation
recommendations. But when the court appointed counsel,
Ramsden stipulated that she could review the CWS plan and
“come back . . . with a recommendation” regarding the interests of
his daughter. The contention is waived. (Mesecher v. County of
San Diego (1992) 9 Cal.App.4th 1677, 1687 [party cannot claim
error on appeal based on action it affirmatively approved].)
Even if it weren’t, there was no error. Upon
determining that it would be in the best interest of a child, a trial
court “may appoint private counsel to represent the interests of
the child in a custody or visitation proceeding.” (Fam. Code,1
§ 3150, subd. (a).) Once appointed, “counsel is to gather evidence
that bears on the best interests of the child, and present that
admissible evidence to the court in any manner appropriate for
1 Statutory references are to the Family Code.
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the counsel of a party.” (§ 3151, subd. (a).) Counsel may also
“introduce and examine [their] own witnesses, present arguments
to the court concerning the child’s welfare, and participate further
in the proceeding to the degree necessary to represent the child
adequately.” (Id., subd. (b), italics added.) This includes “filing
pleadings, making evidentiary objections, and presenting evidence
and being heard in the proceeding.” (Id., subd. (c)(4), italics
added.) These provisions make clear that counsel for H.P.
properly advocated for her client during the proceedings below.
That the parties alternatively called counsel’s advocacy a
“recommendation” or “position” or “argument” is a semantical
distinction with no substantive significance.
Ramsden makes a number of additional attacks on
the role of H.P.’s counsel, arguing primarily that she acted as an
expert appointed pursuant to Evidence Code section 730 and that
she could have been called as a witness subject to cross-
examination. We reject these arguments because counsel did not
testify as an expert and was not called as a witness. The Family
Code permitted counsel to determine what was in H.P.’s best
interest and make that position known to the trial court.
Reliance on hearsay
Citing People v. Sanchez (2016) 63 Cal.4th 665,
Ramsden next contends the trial court erred when it permitted
counsel for H.P. to introduce hearsay evidence. But this
contention presumes that H.P.’s counsel testified at the hearing
on Powell’s move-away request, a presumption Ramsden does not
support with evidence or analysis. (Cf. City of Santa Maria v.
Adam (2012) 211 Cal.App.4th 266, 287 [appellate court may
disregard arguments not supported by legal authority or
analysis].) In any event, Ramsden has not shown that he was
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prejudiced. “[N]o error warrants reversal unless the appellant
. . . show[s] injury from the error. [Citation.]” (Id. at p. 286; see
also F.P. v. Monier (2017) 3 Cal.5th 1099, 1108 [California
Constitution prohibits appellate court from reversing judgment
unless error is prejudicial].)
The move-away request
Next, Ramsden contends the trial court erred when it
granted Powell’s move-away request under a “best interests of
the child” standard rather than the “changed circumstances”
standard. This contention is based on a misunderstanding of
Family Code requirements.
The Family Code requires a trial court to make
custody determinations based on the best interests of the child.
(Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.) Once that
custody determination has been made, the party seeking to
modify it “can do so only if [they] demonstrate[] a significant
change of circumstances justifying a modification.” (Ibid.) “The
changed-circumstance rule is not a different test, devised to
supplant the statutory test, but an adjunct to the best-interest
test.” (Burchard v. Garay (1986) 42 Cal.3d 531, 535, italics
added.) “It provides, in essence, that once it has been established
that a particular custodial arrangement is in the best interests of
the child, the court need not reexamine that question.” (Ibid.)
“Instead, it should preserve the established mode of custody
unless some significant change in circumstances indicates that a
different arrangement would be in the child’s best interest.”
(Ibid.)
The court below applied the proper standards. In its
decision, the court noted that its overarching duty was to make a
determination that was in H.P.’s best interests. It also noted that
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circumstances had changed so significantly that a new
arrangement—permitting H.P. to move with her mother to
Illinois—was in H.P.’s best interests.
And the evidence supports those determinations.
When examining a child custody determination, our review is
limited to determining whether the trial court abused its
discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)
We will find no abuse of discretion if substantial evidence shows
that the “court could have reasonably concluded” that granting
Powell’s move-away request “advanced the ‘best interest’” of H.P.
(Ibid.; see also Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796
[abuse of discretion shown if custody determination not
supported by substantial evidence].)
Here, Ramsden argues “there was no evidence that
there had been any significant change in circumstances, except
the passage of time.” But this ignores the evidence and the trial
court’s findings that Powell’s relationship with her husband had
grown stronger during their three-plus years of marriage. It
ignores that H.P.’s bond with her stepfather had also grown
stronger. And it ignores that H.P.’s relationship with Ramsden
had weakened—something he tacitly admits by acknowledging
that she was having difficulties with him and did not want to
spend as much time at his house. Substantial evidence thus
supports the trial court’s determination that circumstances had
changed so significantly that granting Powell’s move-away
request was in H.P.’s best interest.
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DISPOSITION
The order granting Sadye Powell Peterson’s
move-away request, entered February 8, 2021, is affirmed.
Powell shall recover her costs on appeal.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Timothy J. Staffel, Judge
Superior Court County of Santa Barbara
______________________________
Law Office of M. Jude Egan and M. Jude Egan for
Appellant.
Comstock & Wagner and Stephen A. Wagner for
Respondent.