M.S. v. R.D. CA4/3 ( 2015 )

Filed 9/29/15 M.S. v. R.D. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
M.S.,
Plaintiff and Respondent, G050302
v. (Super. Ct. No. 05P000379)
R.D., OPINION
Defendant and Appellant;
A.S.,
Objector and Respondent.
Appeal from postjudgment orders of the Superior Court of Orange County,
Glenn R. Salter, Judge. Affirmed. Request for judicial notice and/or request to take
additional evidence on appeal. Granted in part and denied in part. Second request for
judicial notice and/or request to take additional evidence on appeal. Denied. Motion for
sanctions for frivolous appeal. Denied.
Law Office of Ronald B. Funk and Ronald B. Funk for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
John L. Dodd & Associates, John L. Dodd; and John S. Cate, Jr., for
Objector and Respondent.
* * *
INTRODUCTION
Following a bitter and lengthy custody battle, the trial court awarded sole
legal and physical custody of 10-and-one-half-year-old A.S. (the minor), to her biological
father, M.S. (father). The minor’s mother, R.D. (mother), has challenged the judgment
awarding custody to father in a companion appeal, M.S. v. R.D. (Sept. 29, 2015,
G049068) (nonpub. opn.).
In this appeal, mother challenges the trial court’s postjudgment orders.
Several of those orders denied mother’s requests for a modification of the child custody
judgment. Mother failed to present any new evidence or proof of changed circumstances.
Mother also challenges the trial court’s order denying her request to remove the minor’s
counsel, John S. Cate, Jr. We find no error on the part of the trial court in denying
mother’s request. Therefore, we affirm the postjudgment orders challenged by mother in
this appeal.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The facts and procedural history of this case through the entry of the child
custody judgment are set forth in full in the companion appeal, M.S. v. R.D., supra,
G049068. On August 1, 2013, the trial court denied mother’s motion to stay the final
judgment. The court also ordered that the minor remain in California.
On September 27, 2013, the Orange County District Attorney’s Office
declined to file criminal charges of child sexual abuse or molestation against father:
“After 20 months of investigation and review of all relevant documents, the decision was
2
arrived at that there is a lack of evidence to support the allegations and the filing of
criminal charges.” Over the next several days, mother called the police department
several times to request welfare checks of the minor.
On October 2, 2013, mother filed an ex parte request for an order to change
custody. The court set the hearing on the matter for that afternoon “[b]ecause of the
seriousness of the allegations, including assertions [by mother] that the child may have
been taken out of the State of California and out of the United States of America in
violation of this court’s order.” (Boldface omitted.) At the afternoon hearing, new
counsel substituted in for mother, and the court ordered that the minor be produced to the
court at 8:30 a.m. on October 4.
The minor was confirmed to be present in the courthouse, and not abducted
to Canada by father, when the matter reconvened on October 4, 2013. The minor’s
counsel relieved Dr. Thea Reinhart from her appointment as the minor’s therapist, and
replaced her with Dr. Amy Stark. The court ordered that mother’s “parenting time
pending hearing be monitored in a way that guarantees no risk of child abduction”
(boldface omitted), and that the minor “shall attend school without missing any classes.”
During mother’s visit with the minor on Sunday, October 6, 2013, mother
absconded with the minor, and failed to bring the minor to a scheduled exchange with the
minor’s paternal aunt at 3:00 p.m. that afternoon.
In a declaration filed after mother’s abduction of the minor, the minor’s
counsel stated he had met with mother on October 2, 2013, and at that time, mother
“admitted that the molest allegations were groundless,[1] understood that the [district
1
In a later order, the trial court relied on the minor’s counsel’s declaration,
as follows: “In court, minor’s counsel represented that [mother] admitted to him that the
allegations of sexual abuse against the father were made up.” Mother communicated to
the minor’s counsel that he had incorrectly declared she admitted coaching the minor to
make the allegations, and the minor’s counsel sought to correct any misstatement with the
court. At the next hearing, the court clarified with the minor’s counsel that what was in
the declaration was correct. Mother claims this demonstrates the trial court’s bias against
3
attorney] had declined filing charges against [father], and, while still denying that she had
coached [the minor] to make these horrendous claims, nevertheless suggested that peace
be restored to [the minor]’s life. She even offered to enter into conjoint counseling [with
father] to work on communication. [¶] It was with those statements in mind that I opined
to the court on Fri[day] (10/4) that I did not think that her 10/6 visit needed to be
monitored. In retrospect, I was wrong, very wrong.”
Mother brought the minor to the courthouse on Monday, October 7. The
court ordered that the minor be released to her paternal aunt and immediately returned to
school. Mother’s newly retained counsel substituted out that day.
On October 9, 2013, father’s request for a move-away order was heard. At
that hearing, the court expressed concern about mother’s violation of the court’s orders
by failing to return the minor after the October 6 visit and by failing to ensure that the
minor got to school on time the next day. The court found mother’s actions to be
unjustified. The court also found that the investigation into father’s alleged molestation
of the minor was based on falsehoods, citing mother’s previous admissions in court, and
her recent statements to the minor’s counsel. The court found, “[mother] has been tested
and she has failed; the Court is unable to trust [mother] at this time.” The court therefore
ruled: “The orders regarding parenting time for [mother] are vacated. [¶] [Mother] shall
have no visitation with the minor child pending further court order unless and until the
Court sees contrition on the part of the [mother] and finds reasons to restore the
relationship.” (Boldface omitted.)
In December 2013, the minor’s paternal aunt filed a petition to be
appointed the minor’s guardian. Father supported the petition; mother opposed it. Father
was living in Canada, and was unable to return to the United States, apparently due to
problems with immigration. Father’s mother had been caring for the minor in father’s
her. We discern no bias from the trial court’s reliance on the statements in the minor’s
counsel’s declaration.
4
residence in Orange County, but needed to return to her home in Canada due to medical
issues, prompting the paternal aunt to seek guardianship of the minor.
In March 2014, mother filed a motion for reconsideration of several prior
requests for orders, pursuant to Code of Civil Procedure section 1008, subdivision (b).
Two of the earlier requests for orders had asked that the court’s custody judgment be
modified to give mother sole legal and physical custody. One requested reversal of the
October 9, 2013, order that had vacated mother’s parenting time, and had ordered that
mother was to have no visitation with the minor “pending further court order unless and
until the Court sees contrition on the part of the [mother] and finds reasons to restore the
relationship.” (Boldface omitted.) The final request was an ex parte request to change
legal and physical custody, which the court had denied because (1) there was no showing
of an emergency, (2) a scheduled hearing for change of custody was already on the
calendar, and (3) mother had not provided any assurance that the minor would be safe in
her custody.
The only new evidence supporting mother’s motion for reconsideration was
the declaration of Dean Tong. Tong claimed to be an expert in the field of false
allegations of child sexual abuse, and had been retained by father in June 2013 in
connection with possible criminal charges. In Tong’s declaration in support of the
motion for reconsideration, Tong explained that, at father’s request, he had summarized
the findings of Dr. Grace Coleman’s work with the minor, and asserted that his summary
had been the basis for the district attorney refusing to file criminal charges against father.
Tong declared that he had later learned father had not provided him with a full case
history and had misrepresented Dr. Coleman’s role in the case. Tong further declared
that he now believed Dr. Coleman had violated various ethical codes, and believed the
minor had been sexually abused.2
2
Both father and father’s criminal counsel filed declarations refuting
virtually the entirety of Tong’s declaration. Specifically, the declarations averred that
5
The trial court issued an order to show cause why monetary sanctions
should not be imposed against Tong for (1) knowingly making false accusations of child
sexual abuse, (2) violating an order sealing the court records in this case by reading and
relying on sealed records, and (3) discussing allegations of sexual abuse of the minor
with Dr. Reinhart although the psychotherapist-patient privilege had never been waived.
(Fam. Code, § 3027.1; Code Civ. Proc., § 177.5; Cal. Rules of Court, rule 5.14(c).) In
response to the order to show cause, Tong withdrew his declaration.
In April 2014, mother filed a request for an order to remove Cate as the
minor’s counsel. In support of her request, mother attached Dr. Reinhart’s deposition
transcript, which had been taken in the separate guardianship proceeding. While father,
father’s counsel, and the minor’s counsel were not present at the deposition, a member of
the press was.3
On April 21, 2014, the minor’s counsel filed an ex parte request to permit
the minor to move to Napa with her paternal aunt, who was leaving the next day. Mother
opposed the request, and filed her own ex parte request to shorten the time on a hearing to
change custody so that the minor could be placed with mother. The minor also filed a
request for a domestic violence restraining order against mother, in which the minor set
forth prior violations of the court’s earlier “no contact” order and asserted the minor was
in fear that mother, mother’s friend, and mother’s husband would “continue to stalk her,
visit her at school, record her attempts to speak to them, and possibly, abduct her again.”
Tong had been retained to opine on damages caused by mother’s coaching; Tong’s
summary of Dr. Coleman’s work with the minor was never provided to the district
attorney, and therefore could not have been used to convince the district attorney not to
file criminal charges against father; and Dr. Coleman was never a therapist for the minor.
Father’s criminal counsel expressed the opinion that Tong had violated the attorney-client
privilege, the duty of confidentiality, and the rules of professional conduct in submitting
the declaration in support of mother’s motion for reconsideration.
3
Mother claims that media member, Voice of OC, “applied for and was
granted by the guardianship court status as an ‘Interested Party’ in the guardianship
case.” Nothing in the appellate record supports this claim, however.
6
The minor’s request for a restraining order also noted that mother was using the minor’s
name and photograph on social media Web sites to drum up public support for mother’s
cause.
The trial court denied the minor’s counsel’s request for the minor to move
to Napa, finding it was in the minor’s best interests to remain in her current school for the
remainder of the school year. The court also denied mother’s request for a change of
custody. Because the paternal aunt was leaving for Napa the next day, the court
appointed Sheryl Edgar, father’s previous counsel, as a temporary guardian. Just four
days later, the court relieved Edgar as the minor’s temporary guardian. The court
continued the hearing on all other pending matters.
At a hearing on May 7, 2014, the court appointed Dr. David Mann as a
child custody evaluator. The court expressed concern that Dr. Reinhart had been
attempting to influence the court with improper ex parte communications. Also at that
hearing, the court advised the parties it had found numerous failures to appear by mother
on outstanding traffic violations, and ordered her remanded to the custody of the sheriff.
On June 6, 2014, mother filed an ex parte request to (1) dismiss father’s
relocation request if he failed to pay Dr. Mann, (2) unseal the trial and posttrial
transcripts, (3) place prior matters back on calendar, and (4) grant mother custody of the
minor based on new evidence and on father’s alleged abandonment of the minor. The
court denied the request to dismiss father’s relocation request, without prejudice, because
there was no admissible evidence that father had not paid fees to Dr. Mann. The court
denied the request to unseal the transcripts because the matter was on appeal, and mother
was therefore required to seek relief from the Court of Appeal. The court refused to
place other matters back on calendar because the court’s minutes reflected that mother
had not appeared on time in court, and the matters went off calendar due to mother’s
failure to pursue them; this ruling was without prejudice to mother resubmitting her
requests for orders. Finally, the court denied mother’s request for a change of custody
7
because it was unsupported by credible evidence. The court noted that its denial of the
request to change custody was made without prejudice, and that mother “may always file
a proper request for order seeking a change of the parenting time arrangement.”
(Boldface omitted.)
Also on June 6, the court denied mother’s request to remove Cate as the
minor’s counsel. On that date, the court also lifted the previous travel restrictions,
permitting the minor to travel under the terms of the judgment.
Mother filed a notice of appeal on June 13, 2014 from the trial court’s
orders of April 21, April 25, May 7, and June 6, 2014. (Many of these orders cover
multiple issues. We have only considered on appeal the issues specifically raised in
mother’s appellate briefs.)
In August 2014, the court ordered that the minor could reside with her
paternal aunt in Napa, California, and transferred the case to the Superior Court of Napa
County. The court also ordered reunification therapy between the minor and mother.4
4
The minor’s request for judicial notice and/or request to take additional
evidence on appeal is granted in part and denied in part. All the items that the minor
asked this court to take judicial notice of are properly noticeable, as they are all records
of courts of this state. (Evid. Code, § 452, subd. (d)(1).) Mother did not file any
opposition to this request.
We will take judicial notice of (1) the record in the companion appeal,
M.S. v. R.D., supra, G049068; (2) the record in prior writ proceeding No. G050449;
(3) the record in prior writ proceeding No. G050538; (4) the record in prior writ
proceeding No. G050301; and (5) the order on an order to show cause, in Orange County
Superior Court, case No. 05P000379, filed August 19, 2014.
The other documents of which the minor asks us to take judicial notice
are not relevant to the issues raised by this appeal, and we deny the request as to them.
8
DISCUSSION
I.
REQUESTS TO CHANGE CUSTODY
On appeal, mother challenges several rulings by the trial court which
refused to reverse or modify the child custody judgment.
Custody orders are reviewed for abuse of discretion. (Montenegro v. Diaz
(2001) 26 Cal. 4th 249, 255.) Once a permanent custody order is in place, it may be
modified only if there has been a “significant change of circumstances justifying a
modification.” (Id. at p. 256.) “‘[The changed circumstances rule] 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. 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.
The rule thus fosters the dual goals of judicial economy and protecting stable custody
arrangements.’ [Citation.]” (Ibid.; see In re Marriage of Brown & Yana (2006) 37
Cal. 4th 947, 955-956.) The parent requesting modification must introduce admissible
evidence of changed circumstances. (In re Marriage of Dunn (2002) 103 Cal. App. 4th
345, 348.)
Mother argues she should be granted sole legal and physical custody of the
minor, pursuant to Family Code section 3010, subdivision (b). Section 3010 reads as
follows: “(a) The mother of an unemancipated minor child and the father, if presumed to
be the father under Section 7611, are equally entitled to the custody of the child. [¶]
(b) If one parent is dead, is unable or refuses to take custody, or has abandoned the child,
the other parent is entitled to custody of the child.”
Family Code section 3010 provides the basic ground rules of parental
custody, and applies in a situation where no other court order involving custody exists.
In the context of criminal liability for the abduction of a child, the courts have held:
9
“That manifestly is not the purpose of the proviso that only a person ‘not having a right
of custody’ may violate [Penal Code] section 278 [prescribing punishment for child
abduction]. Rather, its purpose is to acknowledge that in the absence of an order or
decree affecting the physical custody of the child either parent is privileged (peaceably)
to take exclusive possession of the child. [Citations.] Prior to a judicial order depriving
a parent of full custody both parents have ‘a right of custody.’ [Citation.]” (People v.
Irwin (1984) 155 Cal. App. 3d 891, 896-897, italics added.) An order granting sole
custody to one parent, and thus depriving the other parent of custody, such as the
judgment in this case, alters the landscape, and makes the presumptions of Family Code
section 3010 inapplicable.
Mother contends father has abandoned the minor or is unable to or refuses
to take custody of the minor. “The meaning of ‘abandonment’ is not provided in former
section 279 [of the Penal Code] or section 3010 of the Family Code, but the term has
been given specific and technical definition by statute and case law. The definition of
‘“abandonment” most frequently employed by appellate opinions’ is ‘“an actual
desertion, accompanied with an intention to entirely sever, so far as it is possible to do so,
the parental relation and throw off all obligations growing out of the same” . . . .’
[Citations.]” (People v. Ryan (1999) 76 Cal. App. 4th 1304, 1315, fn. omitted.) Father has
consistently appeared through counsel at hearings in the trial court, has maintained
contact with the minor through Skype, and has continued to provide for the minor’s
needs. Father has not abandoned the minor within the meaning of Family Code
section 3010, subdivision (b).
Mother repeatedly contends that the trial court found father abandoned the
minor. What the court actually said when appointing father’s former counsel as a
temporary guardian, was that father had “provided for the minor’s care,” but that if the
paternal aunt had to move back to Napa “leaving the minor without any supervision . . . ,
it would appear [father] is abandoning the minor.” Because father was able to continue
10
providing for the minor until the court approved the minor’s move to Napa, no
abandonment occurred.
While father has not been able to enter the United States, he has exercised
his physical and legal custody rights over the minor. During the time father has been
unable to be with the minor, he has arranged for her care and well-being. In the context
of juvenile dependency proceedings, a parent is deemed to have left a child without
support when the parent cannot arrange for the care of the child, or when the adult with
whom the child resides in the absence of the parent can no longer provide for the child’s
care or support. (Welf. & Inst. Code, § 300, subd. (g).) Although father is unable to
enter the United States, he has provided for the care of the minor through his mother, and
then his sister-in-law.
Even if mother were correct that father cannot exercise physical custody
over the minor while residing outside the United States, that does not mean that custody
must be transferred to mother. The trial court found joint custody or sole custody to
mother would not be in the minor’s best interests. Father’s residency was not a part of
that decision, so a change in father’s residence does not require reversal of the final
custody judgment. None of mother’s various requests for orders provides any evidence
of changed circumstances involving the factual findings supporting the trial court’s
determination of custody.
And even if the physical custody order needed to be changed due to father’s
inability to enter the United States, there would be no reason to change legal custody of
the minor. Given the trial court’s earlier findings about mother and father’s inability to
coparent, any change in legal custody would not be in the minor’s best interests. If father
lost custody based on his inability to enter the United States, as mother argues, the relief
to be granted would not be automatically awarding sole custody to mother; it would be a
new evidentiary hearing to determine what is the best solution “according to the best
11
interest of the child as provided in [Family Code] Sections 3011 and 3020.” (Fam. Code,
§ 3040, subd. (a).)
Mother also argues that the trial court violated Family Code section 3040,
which sets the order of preference for awards of custody. This statute is not applicable,
however, because none of the trial court’s postjudgment orders contemplates, much less
changes, the award of custody to anyone other than father. Permitting the minor to live
with her paternal aunt does not effect a change of the custody judgment, and the order
appointing father’s prior counsel as the temporary guardian was only a temporary
measure. The cases and statutes mother cites regarding awarding custody to a nonparent
are inapposite.
Throughout her appellate briefs, mother expresses concern that the trial
court’s orders are effecting a “travesty of justice,” and denying mother and the minor
their fundamental rights. As detailed in M.S. v. R.D., supra, G049068, mother accused
father of sexually abusing the minor, then stipulated and testified that no abuse had
occurred, only to withdraw from the stipulation and again claim that sexual abuse had
occurred. Since the entry of the trial court’s custody judgment, in which the court
expressed a goal of joint custody, mother has accused father of taking the minor out of
the country; failed to return the minor at the end of a scheduled visitation; violated
no-contact orders; posted the minor’s name and photograph on social media Web sites;
provided sealed, confidential court records to various third parties; encouraged the
minor’s court-appointed psychotherapist to violate privilege and the duties of
confidentiality; supported a petition for guardianship of the minor filed by mother’s
husband, who had previously been accused of assaulting mother; and continued to submit
to the court declarations and depositions of witnesses to support mother’s claim that
father has molested the minor, and that mother did not coach the minor to make
accusations of molestation, despite the trial court’s findings to the contrary. In short, this
case may well be a travesty of justice, but not in the way mother suggests.
12
II.
REQUEST TO REMOVE THE MINOR’S COUNSEL
The trial court denied mother’s request to remove the minor’s counsel.
Mother argues that the court abused its discretion in doing so, and also argues that the
court erred by refusing to receive live testimony from Dr. Reinhart in support of that
request. The appointment of counsel for a minor in a custody proceeding is a matter left
to the discretion of the trial court. (Fam. Code, § 3150.)5
As explained more fully in the companion opinion, M.S. v. R.D., supra,
G049068, Dr. Reinhart was appointed by the court as a therapist for the minor.
Dr. Reinhart’s confidential communications with the minor were unquestionably covered
by the psychotherapist-patient privilege. (Evid. Code, §§ 1012, 1014.) The minor did
not waive the privilege. Dr. Reinhart, however, submitted to a deposition in the
guardianship proceedings. In that deposition, she refused to answer questions regarding
her direct communications with the minor, but she testified as to her conclusions drawn
from those communications. Mother submitted excerpts from the transcript of
Dr. Reinhart’s deposition in support of the request to remove the minor’s counsel.
Dr. Reinhart’s declaration was also a part of the trial court’s record, having been filed in
support of mother’s postjudgment request for a modification of the custody judgment.
The court indicated at the hearing on the request to remove the minor’s counsel that it had
read both the deposition and the declaration.
5
Family Code section 3150 provides: “(a) If the court determines that it
would be in the best interest of the minor child, the court may appoint private counsel to
represent the interests of the child in a custody or visitation proceeding, provided that the
court and counsel comply with the requirements set forth in Rules 5.240, 5.241, and
5.242 of the California Rules of Court. [¶] (b) Upon entering an appearance on behalf of
a child pursuant to this chapter, counsel shall continue to represent that child unless
relieved by the court upon the substitution of other counsel by the court or for cause.”
13
Mother argues that she had an absolute right to have Dr. Reinhart testify at
the hearing on the request to remove the minor’s counsel, citing Family Code
section 217, which provides: “(a) At a hearing on any order to show cause or notice of
motion brought pursuant to this code, absent a stipulation of the parties or a finding of
good cause pursuant to subdivision (b), the court shall receive any live, competent
testimony that is relevant and within the scope of the hearing and the court may ask
questions of the parties. [¶] (b) In appropriate cases, a court may make a finding of good
cause to refuse to receive live testimony and shall state its reasons for the finding on the
record or in writing. . . . [¶] (c) A party seeking to present live testimony from witnesses
other than the parties shall, prior to the hearing, file and serve a witness list with a brief
description of the anticipated testimony. If the witness list is not served prior to the
hearing, the court may, on request, grant a brief continuance and may make appropriate
temporary orders pending the continued hearing.”
California Rules of Court, rule 5.113 sets forth the factors supporting a
finding of good cause to exclude live testimony: “(b) Factors [¶] In addition to the rules
of evidence, a court must consider the following factors in making a finding of good
cause to refuse to receive live testimony under Family Code section 217: [¶] (1) Whether
a substantive matter is at issue—such as child custody, visitation (parenting time),
parentage, child support, spousal support, requests for restraining orders, or the
characterization, division, or temporary use and control of the property or debt of the
parties; [¶] (2) Whether material facts are in controversy; [¶] (3) Whether live testimony
is necessary for the court to assess the credibility of the parties or other witnesses; [¶]
(4) The right of the parties to question anyone submitting reports or other information to
the court; [¶] (5) Whether a party offering testimony from a non-party has complied with
Family Code section 217(c); and [¶] (6) Any other factor that is just and equitable. [¶]
(c) Findings [¶] If the court makes a finding of good cause to exclude live testimony, it
must state its reasons on the record or in writing. The court is required to state only those
14
factors on which the finding of good cause is based. [¶] . . . [¶] (e) Witness lists [¶]
Witness lists required by Family Code section 217(c) must be served along with the
request for order or responsive papers in the manner required for the service of those
documents . . . . If no witness list has been served, the court may require an offer of
proof before allowing any nonparty witness to testify.”
Even if live testimony was permitted, pursuant to Family Code section 217,
subdivision (b), there was substantial evidence from which the trial court could have
made a finding of good cause not to permit live testimony.6 The removal of the minor’s
counsel is not a substantive matter, pursuant to California Rules of Court,
rule 5.113(b)(1). Pursuant to rule 5.113(b)(6), the court properly considered
Dr. Reinhart’s violation of the psychotherapist-patient privilege and of the duty of
confidentiality in finding good cause for excluding live testimony on this issue. In
addition, Dr. Reinhart’s live testimony was not relevant, pursuant to Family Code
section 217, subdivision (a) and California Rules of Court, rule 5.113, as discussed post.
Family Code section 217, subdivision (c) and California Rules of Court,
rule 5.113(e) do not appear to have been complied with, as no witness list identifying
Dr. Reinhart appears in the appellate record.7
Turning to the substance of mother’s request that the minor’s counsel be
removed, we find no abuse of discretion by the trial court. Mother argued that counsel
should be removed because he was not acting in the minor’s best interests. Specifically,
mother criticized the minor’s counsel for failing to present to the trial court
Dr. Reinhart’s opinions that the minor had been the victim of a crime. What must be
6
The trial court did not make findings on the record or in writing pursuant
to Family Code section 217, subdivision (b) or California Rules of Court, rule 5.113(c).
It is obvious from the transcript of the hearing, however, that the court did not find good
cause for hearing live testimony, as explained in the text.
7
Mother asserts in her opening brief on appeal that Dr. Reinhart “was
subpoenaed and available to testify on the date of the hearing.” Nothing in the appellate
record, however, supports that assertion.
15
remembered is that the minor’s first counsel, Harold LaFlamme, refused to allow
Dr. Reinhart to testify at the child custody trial, despite mother’s claim that Dr. Reinhart
would have testified the minor had been the victim of a crime. As we explained in the
companion opinion, M.S. v. R.D., supra, G049068, there was no prejudice due to the lack
of Dr. Reinhart’s testimony at trial because Dr. Reinhart’s child abuse report was
thoroughly investigated, after which any allegation of child abuse was determined to be
unsubstantiated. Mother fails to explain how Cate’s failure to attempt to bring those
allegations to the court’s attention again was not in the minor’s best interests.
Mother argues that Cate should have been removed as the minor’s counsel
because he had too strongly aligned himself with father. Mother relies on the fact that the
minor’s counsel submitted declarations from father and the minor’s paternal aunt in
support of the minor’s request to move to Napa. Because the request was made by the
minor, we find nothing improper in the minor’s counsel preparing those declarations, and
including his own name, state bar number, and contact information on the title page of
each.
Mother also argues Cate failed to ensure that the minor was regularly
undergoing therapy with her court-appointed psychotherapist. The factual basis for this
claim is mother’s declaration that she was “informed” that the minor had not yet been
seen by the new therapist, more than six months after she had been appointed. Mother’s
unsupported contention was an insufficient ground for removing the minor’s counsel.
Further, Dr. Reinhart’s opinions were not relevant to mother’s repeated
attempts to modify the custody judgment. The custody judgment could only be modified
by a showing of changed circumstances. (Montenegro v. Diaz, supra, 26 Cal.4th at
p. 256.) Dr. Reinhart’s opinion that the minor had been the victim of a crime predated
the judgment, and was not evidence of new facts or a change in circumstances. In her
deposition, Dr. Reinhart opined that Dr. Coleman’s treatment of the minor was
inappropriate because of the type of therapy used, her lack of experience with minor
16
patients, conducting therapy at the same time that the minor was in therapy with
Dr. Reinhart, and Dr. Coleman’s previous relationship with father.8 Dr. Reinhart became
aware of Dr. Coleman’s therapy with the minor because the minor’s previous counsel,
LaFlamme, instructed Dr. Coleman to contact Dr. Reinhart and provide the information
to her, and further instructed Dr. Coleman to stop seeing the minor. Therefore, all of
Dr. Coleman’s contacts with the minor occurred before Cate was appointed as the
minor’s counsel.
III.
THE MINOR’S MOTION FOR SANCTIONS AND THE MINOR’S SECOND
REQUEST FOR JUDICIAL NOTICE AND/OR REQUEST TO TAKE
ADDITIONAL EVIDENCE ON APPEAL
The minor has brought a motion under California Rules of Court,
rule 8.276(a)(1) for an order imposing sanctions against mother and her counsel for
pursuing a frivolous appeal. This motion is virtually identical to the motion filed in the
companion case (M.S. v. R.D., supra, G049068), and the same analysis applies in this
case. The minor requests sanctions in the amount of $5,164.68 for attorney fees and costs
incurred in preparing the minor’s appellate brief. The minor also requests that mother
and her counsel be ordered to pay sanctions to the clerk of this court to compensate the
state for the cost of processing the appeal. Mother filed opposition to the motion for
sanctions.
Mother’s appeal is neither frivolous nor pursued solely to cause delay.
(Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1).) The minor fails to point
to any evidence supporting a claim that mother’s appeal was pursued for an improper
8
We note that father’s declaration in opposition to Tong’s declaration,
discussed ante, refutes much of Dr. Reinhart’s testimony regarding Dr. Coleman.
17
motive. There is no evidence that mother’s appeal caused any harassment of father, who
did not even file an appellate brief.
The minor identified the following as evidence that the appeal is
objectively without merit: (1) mother argued for application of an erroneous standard of
review, (2) mother argued about orders the minor claims are moot, (3) mother relied on
facts outside the record, (4) mother argued about the merits of appeal No. G049068, and
(5) none of the issues raised by mother’s appeal “is remotely arguable.” While these may
constitute a failure to comply with the appellate rules, they do not rise to the level of an
appeal that is completely without merit. Our affirmance of the postjudgment orders does
not mean that mother’s appeal was wholly without merit. (In re Marriage of Flaherty
(1982) 31 Cal. 3d 637, 650; In re Marriage of Gong & Kwong (2008) 163 Cal. App. 4th
510, 516.)
The minor candidly admits that one of the reasons for bringing the motion
for sanctions is to deter future counsel from representing mother should she choose to
pursue the litigation. A request for sanctions in one case should not be intended to
prevent the other party from retaining counsel in other matters.
The minor also asks this court to take judicial notice of a federal complaint
filed by mother against father, the minor’s former counsel, the SSA social workers, the
Orange County Superior Court, former visitation monitors, and others, alleging, inter alia,
violation of mother’s and the minor’s due process rights. As a record of a United States
court, this is a matter of which this court may take judicial notice. (Evid. Code, § 452,
subd. (d)(2).) We decline to take judicial notice of this complaint, however, because
mother’s separate pursuit of damages for alleged federal relief is not relevant to the issues
raised on this appeal, nor is it relevant to the motion for sanctions.
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DISPOSITION
The postjudgment orders are affirmed. The minor shall recover costs
incurred on appeal.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
RYLAARSDAM, J.
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