S.T. v. L.R. CA2/2

Filed 5/28/21 S.T. v. L.R. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
S.T., B304069
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BF055670)
v.
L.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Emily T. Spear, Judge. Affirmed.
Law Offices of Charles O. Agege and Charles O. Agege for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_____________________________________________
L.R. (Father) appeals a family court order giving
respondent S.T. (Mother) custody of their son Joey. There was no
abuse of discretion in the court’s custody and visitation order or
its procedural rulings. The record supports the finding that
changed circumstances mandate removing Joey from Father to
serve the boy’s best interests. (Fam. Code, § 3020, subd. (a).)1
We affirm.
FACTS AND PROCEDURAL HISTORY
In 2016, Father petitioned for sole legal and physical
custody of the parties’ three children, including Joey (then five
years old).2 Mother agreed to give Father physical custody of the
children; she requested joint legal custody plus weekend and
holiday visits.
After a hearing, the court issued a judgment in 2017 (the
Judgment). Father received sole physical custody; the parties
shared legal custody. Mother was given weekend visits with Joey
and ordered to pay child support.
In December 2018, Mother filed a request for order (RFO)
to modify the Judgment. She sought sole legal and physical
custody of Joey, declaring that Father prevents her scheduled
visits with Joey and police have intervened on numerous
occasions. Despite their joint legal custody, Father does not
inform Mother of Joey’s illnesses or school conferences and
refuses to let Joey participate in family therapy. Father makes
malicious comments about Mother to Joey (calling her “ ‘a stupid
1 Undesignated statutory references are to the Family
Code.
2
Joey was born in 2011. His siblings have reached the age
of majority and are not involved in this appeal.
2
bitch’ ”) and causes Joey to feel worried and guilty about visiting
Mother.
A contested hearing began in July 2019.3 Mother testified
that Father weeps when Joey goes for visits and has poisoned the
boy against her. As a result, she spends little time with Joey and
feels he is neglected. Father testified that Mother reported him
to child protective services, allowed a friend to hit Joey, and is
seeking custody to avoid paying child support.
At the initial hearing on July 25, the court found no change
in circumstances but told Father to assure Joey that it is safe to
spend nights with Mother, to allow her to have weekends with
her son. The court ordered Father to allow Mother to call Joey,
so they can speak regularly during the week.
The court ordered the parties to participate in a parenting
plan assessment (PPA), in which an evaluator interviews the
family and investigates complaints about child safety. The court
divided the $975 cost of the PPA between the parties, noting that
they could apply for a fee waiver. Father requested a fee waiver;
the court approved his request on August 12.
The PPA was scheduled for August 16. On August 26,
family court services notified the court that the PPA was canceled
because Father did not pay the PPA fee.
On October 16, the court reinstated the PPA and continued
the matter to December. It made temporary orders giving
Mother sole legal and physical custody of Joey and suspending
3 Undesignated dates refer to the year 2019.
3
Father’s visits.4 The court denied Father’s two subsequent ex
parte requests for custody of Joey on October 22 and November 4.
The court resolved Mother’s petition on December 4.
Father’s counsel asked to present evidence. The court rejected
the request as untimely.
Testimony of the PPA Evaluator
A child custody evaluator testified that the parties’ 20-year
relationship ended in 2016, when Mother discovered that Father
is in a long-term relationship with someone else, with whom he
has four children. Mother ejected him from the home.
Mother said Father “pinned her up against the wall by her
neck a few times” and has anger issues. Father denied a history
of domestic violence. When the parties separated, Mother had
custody of Joey. Soon after, the Los Angeles County Department
of Children and Family Services (DCFS) became involved.
Father obtained custody of Joey. There were three referrals to
DCFS, two in 2016 and one in 2019; all were deemed unfounded.
Although Mother had the right to weekend visits for over
three years, Joey never spent the night with her until recently.
Father claimed he did not stop Mother from having overnight
visits. After reviewing text messages between the parents, the
evaluator believed that Father prevented Mother’s court-ordered
visits.
Mother is an office manager. Father has been on disability
since 2016 and depends on general relief, food stamps, and SSI
payments for Joey’s disability. Father drives but does not have a
driver’s license. His criminal history includes making criminal
4The reporter’s transcript does not show what transpired
on October 16; instead, it repeats verbatim the July 25 hearing.
4
threats (1998), contempt of court (2000), grand theft (2015), and
driving without a license (2014).
Though Father denied telling Joey to return at night, Joey
told the evaluator, “Father did not want him to spend the night
at Mother’s house.” When confronted, Father admitted telling
Joey he was “going to be unhappy and sad” if Joey stayed with
Mother. Father did not think this would make Joey feel bad.
Despite his youth, Joey “feels that he has to take care of his
father’s feelings.” Mother “never pushed him to spend the night
because she didn’t want to cause their son distress, because he
knew that Father would get mad” if he stayed with her.
The evaluator opined that Father manipulated Joey, a
young, impressionable child, to “make him feel guilty for
spending time with his mother.” It was inappropriate for Father
to tell Joey, “I will be sad while you’re gone.” She recommended
that Father receive counseling.
Although it was initially difficult for Joey to be uprooted
and moved to Mother’s home in October, he adapted easily, is
more expressive and happier, and made new friends. Father
threatened to remove Joey from school after the court transferred
custody to Mother. The evaluator did not feel that Father
neglected Joey, even if the child had knots in his hair or ate
frozen rather than fresh food at Father’s home.
Mother was concerned for Father’s mental stability. He
attempted suicide twice and threatened to “put a bullet” in her
head and shoot their children. Father said it was not “a real
suicide attempt” and he only pretended to overdose. He owns a
gun but denied threatening to shoot Mother or the children. A
family member heard Father cry after losing custody of Joey,
threaten to kill himself and Joey or take Joey to Nevada. The
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couple’s older children do not want to be involved in this case,
fearful of provoking Father’s anger.
After Mother took custody of Joey, Father failed to bring
her the boy’s medications; she had to get new medications when
he became ill from asthma. Joey had difficulty understanding
the evaluator’s questions, perhaps due to a learning disability or
processing disorder. Joey understood that the judge would decide
where he was going to live. He referred to Mother’s boyfriend as
“his best friend.” Joey realizes that Father lied when he said
Joey could not spend nights with Mother. Joey wants to be fair
and spend time with both parents.
The evaluator opined that Father should exercise discretion
about the information he shares with Joey and be supportive of
Joey’s relationship with Mother. She recommended therapy and
monitored visits for Father, followed by a report when therapy
ends. Father should provide Mother with information about
Joey’s disability. The evaluator recommended that Mother have
custody of Joey. Joey would be at risk of trauma if Father has
custody because he has prevented Mother from having court-
ordered visits for nearly four years.
The Court’s Ruling
After hearing from the PPA evaluator, the court found a
substantial change in circumstances. It found: (1) Joey’s time
with Mother was “severely limited” for three and a half years;
(2) Father “was manipulating Joey into not spending valuable
custody time with mom” and “putting pressure on Joey to not
have a relationship with mom”; (3) Father’s conduct was
“detrimental to [Joey’s] relationship with mom”; (4) Father made
“age-inappropriate comments” to Joey, who was only five when
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Father took custody; (5) Mother is likely to ensure that Joey is
happy and spends time with Father.
The court adopted the recommendations in the PPA. It
gave Mother legal custody; Father has supervised visits three
weekends per month; Joey is in Mother’s care at all other times;
Mother will transport Joey; the parents cannot disparage each
other in Joey’s presence; they must communicate on-line about
Joey in a respectful manner; Father must participate in a
minimum of 26 individual therapy sessions; Father must provide
information about Joey’s learning disability to Mother; and
Mother’s child support obligation was terminated. The court said
Father’s visits are supervised to stop him from “putting pressure
on Joey that is unfair” by saying he is sad and lonely when Joey
is with Mother.
DISCUSSION
1. Continuance of Hearing in July
Father argues that the court abused its discretion by
continuing the July 25 hearing on its own motion while a PPA
was being prepared. Father contends that the court should have
denied Mother’s RFO “outright and call[ed] it a day.” Father is
mistaken.
The court’s primary concern in custody disputes is “the
well-being of the children, not the preferences of the parties,” and
it may order modifications of custody “ ‘at any time’ ” to benefit
the child. (In re Marriage of Olson (2015) 238 Cal.App.4th 1458,
1463–1464 (Olson); § 3087.) Mother carried her initial burden of
showing changed circumstances by testifying that Father
prevented her weekend visits with Joey for over three years.
The court may have an evaluator assess custody and
visitation rights in a contested proceeding. (§ 3111; Cal. Rules of
7
Court, rule 5.220.) It was not an abuse of discretion to continue
the hearing to allow an evaluator to interview Joey, his parents,
and others. The purpose of the continuance was to give the court
time to collect the information needed to determine Joey’s best
interests. (§ 3020, subd. (a).)
2. Interim Rulings Are Not Reviewable
We start with the rule that postjudgment orders that are
“ ‘preparatory to later proceedings’ ” are not appealable. (Olson,
supra, 238 Cal.App.4th at p. 1462.) An order that the parties
attend a PPA is not final. (Ibid.)
Father cites the court’s interim ruling on July 25. It left in
place the custody arrangement described in the Judgment and
ordered a PPA. Five months later, Father’s counsel argued that
the court did not find a change of circumstances on July 25. The
court replied, “[W]hatever I said on July 25th . . . is not relevant
to these proceedings.” The court was correct: It issued a final
order after hearing testimony from the custody evaluator. The
final written order is the only order subject to our review.
Father makes several contentions about the October 16
hearing. We do not know what was said at the hearing because
the reporter’s transcript is not in our record. (See fn. 4, ante.)
From the minute order, we know the court reinstated the PPA,
which the evaluator canceled without realizing Father had a fee
waiver. Mother was sworn and testified, though we do not know
the substance of her testimony. The court awarded Mother
temporary custody after the hearing.
Father claims the court “stripped [him] of his entire
custodial rights to Joey, based on its erroneous finding that the
PPA was canceled due to nonpayment” of fees by Father. No
evidence supports Father’s claim. It is pure speculation that he
8
was punished because of PPA fees. In any event, the temporary
custody order was superseded by the final order that Father has
appealed. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 559–560
[a temporary custody order is interlocutory]; Banning v. Newdow
(2004) 119 Cal.App.4th 438, 456 [same].)
Father claims the court erred by denying the ex parte
requests for custody he made while Mother’s RFO was pending.
The summary denials of Father’s requests in October and
November are not reviewable. They were superseded by the
court’s final written order in December modifying the Judgment.
(Olson, supra, 238 Cal.App.4th at p. 1462.)
3. Denial of Additional Parental Testimony
On December 4, Father asked to present testimony. The
court denied his request because it “was not made in a timely
fashion. [Mother] was entitled to notice of the 217 hearing in
case she wanted to bring in her own witnesses and you did not
provide her with any notice that it was going to happen.”
Under section 217, the court receives live, competent,
admissible relevant evidence at a hearing on a RFO. (Cal. Rules
of Court, rule 5.113(a).) The court mistakenly believed notice is
required if a party asks to testify at the hearing. A witness list
describing anticipated testimony must be served “to present live
testimony from witnesses other than the parties.” (§ 217, subd.
(c), italics added.)
Although the court misconstrued the notice requirement, it
gave reasons for denying testimony. The court was “pretty
familiar with this case” from the parties’ prior appearances; it
reviewed Father’s declarations seeking custody and restraining
order documents; and, “I believe that I have enough information
to make a ruling based on what I’ve heard so far.”
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The court’s refusal to hear more testimony was not an
abuse of discretion. It heard live testimony from the parties on
July 25 and October 16. Citing its familiarity with the case, it
deemed additional testimony unnecessary. (Cal. Rules of Court,
rule 5.113(b)(3).) Father’s attorney cross-examined the custody
evaluator, which allowed Father “to question anyone submitting
reports or other information to the court.” (Id., rule 5.113(b)(4).)
The reasons the court gave for excluding further testimony
constituted good cause. (Id., rule 5.113(c).)
4. Modification of Custody Order
The court’s “overarching concern is the best interest of the
child” in custody and visitation disputes. (Montenegro v. Diaz
(2001) 26 Cal.4th 249, 255; § 3020, subd. (a).) The court considers
all relevant factors, including the child’s health, safety and
welfare and the nature and amount of the child’s contact with the
parents. (§ 3011, subd. (a).) It has “the widest discretion to
choose a parenting plan that is in the best interest of the child.”
(§ 3040, subd. (d).) We review custody and visitation orders
under “the deferential abuse of discretion test.” (In re Marriage
of Burgess (1996) 13 Cal.4th 25, 32.) We determine if factual
findings are “supported by substantial evidence concerning the
‘best interest’ of the minor children.” (Ibid.)
The evidence showed Mother was deprived of court-ordered
weekend visits for years. Though Father claimed not to be the
source of the problem, Joey told the evaluator Father “did not
want him to spend the night at Mother’s house” and burdened
the child with guilt, saying he would be “sad” if Joey stayed with
Mother. The evaluator reviewed Father’s messages to Mother
and believed Father prevented visits. His conduct violated “the
public policy of this state to ensure that children have frequent
10
and continuing contact with both parents after the parents have
. . . ended their relationship.” (§ 3020, subd. (b).)
The court’s order for supervised visits falls within the scope
of its duty to act in Joey’s best interests. Mother said that Father
engaged in domestic violence and threatened to kill her and the
children. A family member heard Father say, after the court
changed custody in October, that he would kill himself and Joey
or take Joey to Nevada. He engaged in manipulative behavior
with a young, impressionable child. He has a history of suicide
attempts and did not provide Mother with Joey’s asthma
medication, posing a risk to the boy’s health. Though Father
denied misconduct, the court did not find him credible. We do not
reweigh credibility determinations on appeal.
Protective measures such as supervised visits may be
ordered if a party has previously withheld a child in violation of
the other parent’s visitation rights, has threatened to take the
child, or has a history of noncooperation. (§ 3048, subd. (b)(1)–
(2).) Limitations on Father’s visitation serve not as punishment
“but as a means to prevent a potential future tragedy.” (In re
Marriage of Economou (1990) 224 Cal.App.3d 1466, 1486–1487
[citing risk that a father would abscond with the children].)
To ensure Joey’s safety and welfare, the court required
Father to participate in counseling. (§ 3190.) Father denied that
his weeping, demands that Joey avoid Mother, and his insulting
statements about Mother affected Joey; however, the evaluator
spoke to Joey, who felt responsible for Father’s feelings and
guilty when he saw Mother. The requirement of 26 counseling
sessions was not an abuse of discretion.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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