Stacy V. v. Frank B. CA2/7

Filed 1/18/23 Stacy V. v. Frank B. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
STACY V., B316943
Respondent, (Los Angeles County
Super. Ct. No. LF005780)
v.
FRANK B.,
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Firdaus F. Dordi, Judge. Affirmed.
Frank B., in pro. per., for Appellant.
Cohen and Schwartz and Kenneth L. Schwartz for
Respondent.
__________________________
Frank B. (Father) appeals from a family court order
denying his request to modify a final custody order that gave
Stacy V. (Mother) sole legal and physical custody over their two
children. Father contends the family court erred in excluding
from evidence reports prepared by the Department of Children
and Family Services (DCFS) and other documents offered to
support his request, and he was entitled to joint custody because
Mother alienated the children from him and violated existing
visitation orders. The court did not abuse its discretion in
excluding Father’s evidence. Further, Father’s admissible
evidence did not compel a finding there was a significant change
in circumstances such that a modification would be in the
children’s best interest. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Custody Orders
This is Father’s second appeal in this child custody action.
As we described in Stacy V. v. Frank B. (Dec. 18, 2019,
No. B293010 [nonpub. opn.]), Mother lives in Tarzana and works
as an elementary school teacher. Father lives in Woodland Hills,
about 20 miles from Mother, and has been retired since 2008.
Mother and Father met in 2009, and they have two children
together, Brendan (born in 2010) and Luke (born in 2011).
Mother and Father never married or lived together.
On September 29, 2011 Mother filed a petition in family
court seeking sole legal and physical custody over the boys and
child support. Father filed a cross-petition seeking joint legal
and physical custody, with no child support. On September 30,
2013 the family court1 issued a pendente lite custody order
awarding Mother sole legal and physical custody, with visitation
for Father, after finding Father engaged in “unrelenting attacks”
on Mother and refused to cooperate in coparenting.
1 Commissioner Steff R. Padilla.
2
On May 5, 2016 the family court2 granted Father’s request
for joint legal and physical custody in light of his completion of
classes and therapy and on the recommendation of the court-
appointed child custody evaluator. The court imposed conditions
to facilitate coparenting, including that Mother and Father could
only communicate with each other through Our Family Wizard
(OFW) messaging software, and the court admonished each
parent to “refrain from controlling the other parent in his or her
parenting” and “to limit critical, insulting and destructive emails
to the other parent.”
At a May 24, 2017 settlement conference, Mother and
Father executed a stipulation and order of settlement providing
for joint legal and physical custody with a parenting plan and
allocation of child-rearing expenses. A stipulated judgment was
entered on August 17. However, on April 5, 2018 Mother filed a
postjudgment request for order awarding her sole legal and
physical custody of the boys. Mother argued Father had been
extremely controlling and incapable of coparenting, and he would
lash out at her “almost daily” over OFW, interfering with her
custodial time and making handoffs and practical
accommodations difficult. Mother also asserted the boys spent
too much time shuttling between the parents’ homes and school;
Father had become “obsessed” with the boys’ participation in
sports; Father proposed to separate the boys for custody purposes
because Luke was more athletically inclined than Brendan; and
Father had taken the boys to a physical examination without
Mother’s consent.
On July 27, 2018 the family court granted Mother’s request
and awarded her sole legal and physical custody of the boys (the
2 Judge Shirley K. Watkins.
3
July 2018 custody order). The court found Mother presented
credible evidence of changed circumstances adversely impacting
the boys. The modified parenting plan provided that during the
school year Father had visits with the boys on the first, third, and
fifth weekends of the month and Tuesday and Thursday
afternoons. During the summer the parents had custody of the
boys on alternating weeks, as well as alternating holidays and
vacations.
Father appealed the modified custody order, and on
December 18, 2019 we affirmed. (Stacy V. v. Frank B., supra,
No. B293010.) We held, “The trial court did not abuse its
discretion in finding Father’s continued abusive behavior toward
Mother in sending her dozens of messages berating her parenting
style constituted a changed circumstance supporting a grant of
sole legal and physical custody to Mother because of Father’s
inability to coparent their sons and his interference with
Mother’s custodial time.” (Id.) We noted Father could
prospectively seek joint custody based on a showing of changed
circumstance or that a modification of the visitation schedule was
in the boys’ best interests.
B. Father’s RFO To Modify Custody
On January 21, 2021 Father filed a request for order (RFO)
seeking modification of the July 2018 custody order to award him
joint legal and physical custody of the boys with an equal
timeshare. On March 25 the family court set an evidentiary
hearing on the RFO and ordered the parties to submit
declarations setting forth their positions and attaching
supporting documents as exhibits. The court clarified that the
4
declarations would serve as the parties’ direct testimony, with
cross-examination in court.3
In his April 22, 2021 declaration, Father asserted as
changed circumstances that Mother alienated the boys from
Father (especially 10-year-old Brendan), and the parental
alienation constituted emotional child abuse. He also argued
Mother repeatedly violated the July 2018 custody order,
interfering with his visitation. Father averred that by Mother’s
own admission, the boys were “‘doing great’” at the time of the
July 2018 custody order, yet by September 2020 Brendan was
suicidal.4 Father stated Raychel Richard, a DCFS social worker
who investigated a March 2019 welfare referral concerning the
boys, determined that Brendan’s therapist (Anne Marsh) was
biased against Father, and this had the potential to exacerbate
Brendan’s alienation from Father.
Father’s declaration quoted numerous excerpts from
“Delivered Service Logs” produced by DCFS, which documented
3 Judge Firdaus F. Dordi presided over the case in 2021 and
made all rulings at issue on appeal. Mother filed a declaration on
April 18, 2021 opposing the RFO, but her declaration is not
included in the appellate record. On May 11 Luke and Brendan’s
court-appointed attorney filed a declaration in opposition to the
RFO.
4 Father attached and the family court admitted into
evidence Mother’s September 30, 2020 declaration opposing an
earlier request for order, in which Mother wrote, “Our son
Brendan has been experiencing suicidal episodes, has been
physically hurting himself. Brendan is in no condition physically,
emotionally and/or mentally to commence any sort of
reunification therapy with [Father] at this time, or in the near
future.”
5
several social workers’ investigations of both the March 2019
welfare referral and a second referral in June 2020 (the DCFS
reports). The March 2019 delivered service logs contained entries
prepared by social workers Rebecca Megerdichian and Shannon
Morris describing their own observations and conversations with
witnesses. The logs also contained information the two social
workers received from Richard, who had performed an
assessment of Mother’s home on March 23, 2019. The June 2020
delivered service log contained entries reflecting written and oral
statements from Richard to Morris describing Richard’s
observations and conversations with witnesses, as well as
information conveyed to Richard by other social workers.
Father’s declaration quoted portions of these reports indicating
social workers observed Mother trying to alienate the boys from
Father by, among other things, badmouthing Father, coaching
the boys to lie about Father to the social workers, and
encouraging Brendan to communicate constantly with Mother
during Father’s custodial time. Father also cited these reports to
show Mother’s home was unsafe because it was dirty; she allowed
the boys to play video games and eat junk food with abandon; and
she controlled what they could wear.
Father’s declaration described his participation in a
continuing legal education seminar titled “Reunification in Case
involving Parental Alienation” and cited (but did not attach)
several “learned treatises” ostensibly defining parental alienation
and describing the typical behaviors utilized by parents to
alienate children. Father attested, “I have observed our son
Brendan exhibit all of these behaviors during his custodial
timeshare visits with me, most pointedly during the past two (2)
years . . . .” Father also cited publications stating parental
alienation is a form of “‘emotional child abuse’” that has adverse
6
impacts on a child’s welfare, including loss of self-respect, low
self-esteem, guilt, anxiety, depression, lack of impulse control,
impaired relations, and educational problems. Father stated he
had observed Brendan exhibiting all of these behaviors. For
example, Brendan was anxious, he slept with his older half-sister
because he was scared at night, he did not wish to visit with
Father, he was addicted to video games, and he ate junk food and
sweets. In addition, Father recounted that Marsh told him that
she planned to start Brendan on anti-depressant drugs to counter
his suicidal thoughts.
Finally, Father’s declaration described Mother’s alleged
violations of the July 2018 custody order. These included an
incident on December 29, 2020 when Brendan refused to go from
Mother’s vehicle into Father’s vehicle during a scheduled
exchange. Father stated he heard Mother tell Brendan, “‘You
don’t have to go with him if you don’t want to.’” Father called the
police, and the Los Angeles County Sheriff’s Department (LASD)
prepared an incident report, which Father attached to his
declaration. Father cited another occasion on January 10, 2021
when Mother refused to acknowledge Father’s visitation time.5
Father also averred Mother worked to frustrate the custody plan
5 OFW messages between Mother and Father attached to
Father’s declaration and admitted into evidence showed Mother
and Father disagreed on who had custody of the boys under the
July 2018 custody order for the night of Sunday, January 10,
2021 continuing into Monday. Father asserted a school closure
on Monday operated to extend his first-weekend-of-the-month
visitation to Monday. However, Mother contended her winter
vacation schedule superseded Father’s visitation because she and
the children were concluding a winter vacation, which allocated
custody for Sunday evening to Mother.
7
by failing to include Father’s contact information on school
registration forms; refusing to provide Father with copies of the
boys’ insurance and social security cards; preventing Brendan
from participating in evening video calls with Father during her
custodial time; taking photographs of the boys during calls with
Father and sending them to Marsh; instructing Brendan to delete
images on Father’s phone and tablet that would have revealed
Brendan was not participating in calls with Father; moving with
the boys to a different residence in late 2019 without advising
Father; discussing court orders with the boys; and providing
Father “false and misleading information” about their hybrid
school schedule during the COVID-19 pandemic.
On May 11, 2021 minor’s counsel Gregory Pedrick served
evidentiary objections to the 22 exhibits attached to Father’s
declaration on the grounds of lack of foundation, lack of
authentication, hearsay, and (as to some exhibits) improper
opinion testimony. On May 14 the court filed “[p]rovisional”
written rulings on the objections, sustaining objections to the
DCFS reports and LASD incident report, as well to emails
authored by Marsh, Richard, and Pedrick, but overruling
objections to the transcripts of prior proceedings, party
declarations, and correspondence between Mother and Father.6
6 The family court also sustained Pedrick’s objections to
Father’s submission of declarations executed years earlier by
Father’s adult children and a prior therapist, school registration
forms, and photographs Father alleged Brendan had tried to
delete from his phone and computer.
8
C. Evidentiary Hearing
The family court conducted an evidentiary hearing on the
RFO on May 21 and August 6, 2021. Mother was represented by
counsel; Father was self-represented; and Brendan and Luke
were represented by Pedrick. Mother’s attorney called DCFS
social workers Morris and Richard as witnesses. In addition, the
court allowed Father and Mother to provide direct testimony as
to recent developments.7
Morris testified she was the DCFS supervising social
worker assigned to a 2019 referral, and she conducted some of
the interviews in connection with the investigation, including
with Father and the boys at the DCFS office and with Mother
over the telephone. The referral alleged possible physical abuse
by Father, the children were afraid of Father and did not want to
go to his house, and Father was allegedly shoplifting in their
presence. Based on its investigation, DCFS concluded the
referral was unfounded as to neglect and alleged physical abuse
by Father, and inconclusive as to emotional abuse by either
Father or Mother. Morris did not recall Father raising Mother’s
parental alienation, and in any event, that was not her role to
diagnose. However, Morris found “it was possible that the
[children were] being asked to say things that were not true.”
Specifically, Morris believed Mother asked the children to
exaggerate complaints about living with Father, including that
7 At the May 21, 2021 hearing, Mother’s counsel briefly
cross-examined Father about his arrest for shoplifting in 2019
and completion of a diversion program, but the family court
curtailed the examination on the basis of relevance. Mother’s
counsel also cross-examined Father about his assertion his actual
parenting time was less than what the July 2018 custody order
provided. Father did not cross-examine Mother.
9
there was “hitting” occurring in his home, they had a fear of
Father, and they disliked the food and clothing at his home.
Morris opined that a parent coaching a child could “in extreme
situations rise to the level of a type of emotional abuse,” but she
did not find the situation in 2019 to be extreme. Morris also felt
Marsh, Brendan’s therapist, was “aligned or only spoke to
[Mother] and the children.” However, Morris did not recall
making a finding Marsh was biased against Father. On redirect
examination, Marsh testified she had a specific recollection she
reviewed the 2019 DCFS report for accuracy. Based on this
admission, Father moved to admit the report into evidence. The
court held the report was not admissible, finding that even if it
had been authenticated, it constituted hearsay and Father had
not established that it fell within the business record exception to
the hearsay rule.8
Richard testified she first visited with Brendan and Luke
in Mother’s home on March 23, 2019. During the visit, the home
was messy, and there was a strong odor of animal urine.
Brendan and Luke were shy and unwilling to speak with her.
They whispered to Mother, and “Brendan was holding on to his
mom pretty tightly.” Richard took Mother aside and expressed
concern that Mother was speaking negatively about Father in the
boys’ presence. Mother was defensive and responded that Father
was a thief and a criminal. Asked if she saw signs of emotional
distress in the boys, Richard responded, “Based on the children
not being comfortable talking to me and also the negative
comments made in front of the children, I did express my concern
8 Although the family court advised Father he could
potentially still use the report to refresh Morris’s recollection,
Father did not attempt to do so.
10
to the mother.” In the course of her investigation, Richard was
also concerned that Brendan spoke with Mother excessively
during visitation with Father, sometimes calling Mother multiple
times, and Mother was interfering with Father’s custodial time.
She observed anxiety in Brendan (but not Luke), and she
believed Brendan was making inaccurate statements to social
workers under Mother’s influence. Richard also spoke to Marsh
and found she “had a negative feeling about the father” and
“failed to engage him in the therapeutic setting.” Further, Marsh
was sharing with Mother information obtained in therapy
sessions with Brendan. However, Richard did not have concerns
regarding the children’s safety in either Mother’s or Father’s
home; she did not find physical abuse in either home; and as to
Mother, “the emotional abuse did not rise to the level of
intervention. Therefore, it was referred to the therapist and
deemed unfounded.” Richard recommended Father and Brendan
seek joint counseling, and Mother was receptive to the idea.
Father testified that Mother continued to alienate the
children from him. During Mother’s custodial time, Brendan
would not participate in calls with Father “99 percent” of the
time, and Father could see Mother hovering over the boys during
video calls. Mother also persisted in furnishing the boys with
clothing and food for their visits with him.
Mother testified Father had access to both boys without her
interference whenever he called, although sometimes Brendan
would be short with Father of his own accord. Mother did not
monitor the boys’ calls with Father, although she would
sometimes hear the calls when Father called while they were in
Mother’s car. Mother acknowledged Brendan brought his own
clothes to visits with Father. Mother was not involved in
Brendan’s packing and felt Brendan was “old enough to do what
11
he needs to do. . . , whatever he wants to bring.” Similarly,
Brendan packed himself snacks without Mother’s involvement.
Although it was then summer vacation and Father had the boys
on alternating weeks, Father often brought Brendan to Mother’s
house for a few hours during Father’s custodial time while Luke
was at his sports practice, because the parents agreed Brendan
should not sit on the sidelines in the heat while Luke practiced.
The family court questioned Mother about how Brendan
was doing. Mother stated Brendan was doing very well in
therapy. She believed his anxiety had lessened and he was faring
better because he was able to see Mother occasionally during his
weeks with Father, in contrast to the previous summer when
Brendan struggled with weeklong visits. Father agreed with
Mother that “since this year, it’s been better.” The court also
asked Mother if she wanted to address Richard’s testimony.
Mother conceded her house was not perfectly tidy during
Richard’s March 2019 visit, but the house was clean and stocked
with food, and there had never been any complaints about the
children being dirty. Mother testified she did not limit Father’s
access to the boys during her custodial time, adding, “They could
call their dad any time. I don’t limit that. I encourage them to
have a relationship with [Father].”
D. The Family Court’s Order Denying the RFO
After the conclusion of testimony and closing arguments,
the family court announced its findings from the bench.9 The
court found Father failed to show changed circumstances
concerning parental alienation, explaining, “[Father] not only
continues to have the parental time that was allocated to him
9 Father withdrew his request for a statement of decision.
12
under [the July 2018 custody order], but he also has telephonic
contact with the children. To the extent that he feels that
Brendan, who’s now 10, does not want to have the full range of
that contact for some of those calls, . . . he hasn’t demonstrated
that that’s [Mother’s] doing.” The only deviation from the
custody order had been Brendan’s visits with Mother during
Luke’s summer sports practice, and both parents supported this.
The court also found Father’s testimony that Mother hovered
over the boys during video calls was “not credible,” and Father in
any event did not present evidence Mother was an “active
participant and trying to control the nature of the
communication, or telling the kids to get off.” The court credited
Mother’s testimony she was not sending food or clothes with
Brendan, and instead Brendan was packing his own bag. The
court found Father’ testimony he had virtually no one-on-one
time with Brendan to be valid but noted this had been a
recurring feature in the case not caused by Mother, and Mother
was supportive of increased time between the two. The court
credited the social workers’ testimony and expressed concern
about the condition of Mother’s home, but it found the testimony
did not demonstrate parental alienation.
The family court also found Father did not meet his burden
to show changed circumstances with respect to Mother’s violation
of the July 2018 custody order. The court found Brendan’s
refusal to go with Father in December 2020 was not Mother’s
fault, and Mother credibly testified in her declaration opposing
the RFO that she had not denied Father access to the children’s
health insurance and social security information. Likewise,
Father did not demonstrate he was not a parental contact with
the children’s school.
13
The family court found, “There have been issues that have
arisen since the 2018 orders that the court does find are
considerable. One was [Father’s] arrest and the investigation
that stemmed from that. Another are the concerns that were
raised to the court about Brendan’s health and welfare with
respect to what he was going through and potentially still going
through . . . . [T]hose things are significant circumstances.”
However, the court concluded these circumstances did not
constitute changed circumstances supporting joint custody for
Father. Rather the court recommended (but did not order)
conjoint therapy for Father and Brendan with an independent
therapist. On August 6, 2021 the court issued a minute order
with findings consistent with its ruling from the bench.
Father timely appealed.10
10 In his opening brief, Father purports to seek review of the
family court’s August 24, 2021 order striking his request to
disqualify Judge Dordi under Code of Civil Procedure
section 170.1. Father’s notice of appeal did not identify the
August 24, 2021 order, and the issue is therefore outside the
scope of our review. (See Conservatorship of Edde (2009)
173 Cal.App.4th 883, 889-890 [appellate court’s “analysis is
limited only to review of the order” identified in the notice of
appeal]; Soldate v. Fidelity National Financial, Inc. (1998)
62 Cal.App.4th 1069, 1073 [separately appealable order “is not
reviewable on appeal, unless [the order] is expressly specified in a
notice of appeal”].) In addition, the exclusive means for review of
a determination on the disqualification of a judge is by petition
for writ of mandate in accordance with Code of Civil Procedure
section 170.3, subdivision (d), not an appeal from the order. (See
Curle v. Superior Court (2001) 24 Cal.4th 1057, 1059.)
Father also purports in his reply brief to seek review of the
family court’s August 16 and September 20, 2022 orders denying
14
DISCUSSION
A. Legal Standard for Custody Modification
“Under California’s statutory scheme governing child
custody and visitation determinations, the overarching concern is
the best interest of the child.” (Montenegro v. Diaz (2001)
26 Cal.4th 249, 255 (Montenegro).) In determining the best
interest of the child, the court must consider “all relevant factors,
including the child’s health, safety, and welfare, any history of
abuse by one parent against any child or the other parent, and
the nature and amount of the child’s contact with the parents.”
(In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956
(Brown & Yana).)
“Once the trial court has entered a final or permanent
custody order reflecting that a particular custodial arrangement
is in the best interest of the child, ‘the paramount need for
continuity and stability in custody arrangements—and the harm
that may result from disruption of established patterns of care
and emotional bonds with the primary caretaker—weigh heavily
in favor of maintaining’ that custody arrangement. [Citation.] In
recognition of this policy concern, we have articulated a variation
on the best interest standard, known as the changed
circumstance rule, that the trial court must apply when a parent
seeks modification of a final judicial custody determination.”
(Brown & Yana, supra, 37 Cal.4th at p. 956.) Under the changed
circumstance rule, “a party seeking to modify a permanent
his subsequent requests for modification of custody. These orders
are not encompassed within Father’s notice of appeal and are not
properly before us. (Conservatorship of Edde, supra, 173
Cal.App.4th at pp. 889-890.)
15
custody order can do so only if he or she demonstrates a
significant change of circumstances justifying a modification.
[Citation.] . . . [A court] 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.” (Montenegro, supra, 26 Cal.4th at p. 256; see In re
Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089-1090
[family court’s modification of custody order from joint to sole
custody was abuse of discretion because of lack of evidence of
changed circumstances].)
Generally, “[w]e review custody and visitation orders for an
abuse of discretion, and apply the substantial evidence standard
to the court’s factual findings.” (In re Marriage of Fajota (2014)
230 Cal.App.4th 1487, 1497; see In re Marriage of Burgess (1996)
13 Cal.4th 25, 32 [noting abuse of discretion standard applies to
review of custody and visitation orders, but applying substantial
evidence standard to factual determinations supporting
relocation order].) “Under this test, we must uphold the trial
court ‘ruling if it is correct on any basis, regardless of whether
such basis was actually invoked.’” (Montenegro, supra,26 Cal.4th at p. 255.)
However, a different standard applies where, as here, the
appellant had the burden of proof in the family court. “‘In the
case where the trier of fact has expressly or implicitly concluded
that the party with the burden of proof did not carry the burden
and that party appeals, it is misleading to characterize the
failure-of-proof issue as whether substantial evidence supports
the judgment.’ [Citation.] ‘Thus, where the issue on appeal turns
on a failure of proof at trial, the question for a reviewing court
becomes whether the evidence compels a finding in favor of the
appellant as a matter of law.’” (Juen v. Alain Pinel Realtors, Inc.
16
(2019) 32 Cal.App.5th 972, 978-979 (Juen); accord, Dreyer’s
Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th
828, 838 (Dreyer’s); In re I.W. (2009) 180 Cal.App.4th 1517, 1528,
disapproved on another ground in Conservatorship of O.B. (2020)
9 Cal.5th 989, 1010, fn. 7.)
“‘Specifically, the question becomes whether the appellant’s
evidence was (1) “uncontradicted and unimpeached” and (2) “of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.”’”
(Juen, supra, 32 Cal.App.5th at p. 979; accord, Glovis America,
Inc. v. County of Ventura (2018) 28 Cal.App.5th 62, 71; Dreyer’s,
supra, 218 Cal.App.4th at p. 838.) “‘[W]here . . . the judgment is
against the party who has the burden of proof, it is almost
impossible for him to prevail on appeal by arguing the evidence
compels a judgment in his favor.’” (Atkins v. City of Los Angeles
(2017) 8 Cal.App.5th 696, 734; accord, Bookout v. State of
California ex rel. Dept. of Transportation (2010)
186 Cal.App.4th 1478, 1486.) “That is because unless the trial
court makes specific findings of fact in favor of the losing [party],
we presume the trial court found the [losing party’s] evidence
lacks sufficient weight and credibility to carry the burden of
proof. [Citations.] We have no power on appeal to judge the
credibility of witnesses or to reweigh the evidence.” (Bookout, at
p. 1486.)
B. The Family Court Did Not Abuse Its Discretion in
Excluding Father’s Hearsay Evidence
Father contends the family court erred in excluding the
DCFS reports and other exhibits attached to his declaration. We
review the family court’s evidentiary rulings, which principally
involved the application of the hearsay rule, for an abuse of
17
discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725 [“an
appellate court applies the abuse of discretion standard of review
to any ruling by a trial court on the admissibility of evidence,
including one that turns on the hearsay nature of the evidence in
question”]; accord, People v. Yates (2018) 25 Cal.App.5th 474, 484;
see Zanone v. City of Whittier (2008) 162 Cal.App.4th 174, 190,
fn. 21 [“We review the exclusion of hearsay evidence on the
ground it does not qualify for admission as a business record for
abuse of discretion.”].)
With respect to the DCFS reports, the family court found
Father failed to establish the reports were admissible under the
business records exception to the hearsay rule.11 The Evidence
Code provides two exceptions for agency reports relevant here.
Evidence Code section 1280, the official records exception,
provides, “Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule
when offered in any civil or criminal proceeding to prove the act,
condition, or event if all of the following applies: [¶] (a) The
writing was made by and within the scope of duty of a public
employee. [¶] (b) The writing was made at or near the time of the
act, condition, or event. [¶] (c) The sources of information and
method and time of preparation were such as to indicate its
11 On appeal, Father does not contend the DCFS reports were
business records, nor does he argue for the application of another
hearsay exception. Rather, he contends the reports were
admissible because the “the writers of the DCFS reports were
witnesses during the hearing, subject to cross examination.” To
the extent Father is arguing the reports were admissible as prior
inconsistent statements made by Morris and Richard (Evid. Code,
§ 1235), he does not identify any inconsistency between the
witnesses’ trial testimony and their statements in the reports.
18
trustworthiness.” Evidence Code section 1271, the business
records exception, sets forth similar requirements for records
made in the regular course of a business, except it also requires a
custodian or other qualified witness to testify to the existence of
the records and mode of preparation. (See Evid. Code, § 1271,
subd. (c).)
Father did not establish the foundational requirements for
admissibility of the DCFS reports under Evidence Code
section 1280 or section 1271 in either his declaration or at the
evidentiary hearing. At most, Morris testified she remembered
the 2019 DCFS report and would have reviewed the report for
accuracy at the time of preparing it. But the document is not a
single incident report; instead, it contains approximately two
dozen dated entry logs. Further, it appears Megerdichian, not
Morris, authored most of the entries. There was no testimony
about how these entries were created. Moreover, there was no
testimony regarding the creation of the 2020 DCFS report, which
includes about 20 entries apparently authored by Richard. The
court did not abuse its discretion in excluding the reports based
on Father’s failure to lay a foundation for the business records
exception. (See People v. Hovarter (2008) 44 Cal.4th 983, 1011
[“A trial court has broad discretion in determining whether a
sufficient foundation has been laid to qualify evidence as a
business record.”].)
Even if Father had established the DCFS reports were
official records or business records, the family court did not abuse
its discretion in excluding them. As this court explained in
Zanone v. City of Whittier, supra, 162 Cal.App.4th at page 192 in
affirming the trial court’s exclusion of a government agency’s
records of employee exit interviews, “[E]ven if they had been
established as business records, [the records] themselves
19
contained hearsay statements regarding the employees’ reasons
for leaving for which no exception had been established.
[Citations.] . . . A summary of an inadmissible hearsay
statement cannot be made admissible merely because it is
repeated in a valid business record.” (Accord, Alvarez v. Jacmar
Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1205 [“[w]hen
multiple hearsay is offered, an exception for each level of hearsay
must be found in order for the evidence to be admissible”]; see
People v. Sanchez (2016) 63 Cal.4th 665, 675 [“An emergency
room report, for example, may record the observations made by
the writer, along with statements made by the patient. If offered
for its truth, the report itself is a hearsay statement made by the
person who wrote it. Statements of others, related by the report
writer, are a second level of hearsay. Multiple hearsay may not
be admitted unless there is an exception for each level.”].)
The DCFS reports are replete with multiple levels of
hearsay, and Father did not attempt to isolate the statements or
to establish a hearsay exception at each level. For example, a
March 21, 2019 entry authored by Megerdichian states, “CSW
Megerdichian contacted [case social worker] Gorgi about the
family’s past referral. . . . [Gorgi] said she had spent time with
the father and felt that [he] was a caring parent and did not
observe any alarming matter.” Father quoted the foregoing
statement in his declaration and offered the reports for the truth
of the matters asserted by Gorgi and others, yet he failed to
establish any ground for admission of the embedded hearsay.
In addition to the DCFS reports, Father challenges the
exclusion of emails he received from Brendan’s therapists,
including a September 28, 2020 email from Marsh stating
Brendan was at risk for self-harm, and a March 17, 2017 email
from Brendan’s former therapist Victoria Frantz stating, “I
20
totally believe that you should have 50% custody.” Father
contends the emails are admissible because “[Father] is the
custodian of records of his e-mails.”12 But the emails were
properly excluded not because of a lack of authentication but
because they contain hearsay. To the extent Father is relying on
the business records exception under Evidence Code section 1271,
there was no testimony that the emails from the therapists were
made in the regular course of a business or that they were made
at or near the time of the act, condition, or event. We also note
the Frantz email was not relevant in that it predated both the
August 2017 stipulated judgment and the July 2018 custody
order.
The family court likewise did not abuse its discretion in
excluding the 2015 declarations of Father’s older children
Anthony and Isabella and Father’s neighbor John Storjev
attesting to Father’s positive parenting in 2011 (when Brendan
and Luke were babies). These declarations are hearsay and not
relevant to whether there were changed circumstances after the
July 2018 custody order. (See Perry v. Bakewell Hawthorne, LLC
12 Father also contends the family court improperly excluded
a September 29, 2020 email from Pedrick forwarding Marsh’s
September 28 email. However, the record does not reflect that
the court excluded the email at the evidentiary hearing. Pedrick
wrote, “Brendan has been exhibiting harmful ideation.
Ms. Marsh needs to discuss the concerns and engage you with a
safety plan while we address positive intervention.” (Underlining
omitted.) The court allowed Father to examine Pedrick about the
email and then ruled, “To the extent that there’s another email,
there’s one by Ms. Marsh. So that would be hearsay and we don’t
have Ms. Marsh here to testify.”
21
(2017) 2 Cal.5th 536, 541 [“Declarations themselves are not
ordinarily admissible because they are hearsay.”].)
Father also contends the family court erred in excluding all
evidence Mother violated the July 2018 custody order. But the
court admitted most of Father’s exhibits on this subject, including
Mother’s communications, and it did not abuse its discretion in
excluding the others. The court excluded the December 29, 2020
LASD incident report, in which the reporting officer described an
interview with Luke about Brendan’s refusal to get into Father’s
vehicle. The report contained two levels of hearsay, and Father
did not establish the official records exception. The court also
excluded a printout of photographs designated as “[r]ecently
[d]eleted” on Father’s electronic devices. Father authenticated
the photographs in his declaration. However, the photographs
had no relevance absent Father’s hearsay statement that
“Brendan stated his mother instructed him to delete any photos
that included nightly Facetime calls that indicate I was not able
to speak with him during his mother[’]s custodial timeshare.”
Finally, the court excluded attendance reports from the boys’
elementary school listing Mother as their contact. Father did not
establish a foundation for admission of the report, and in any
event, as the court explained to Father, “The printout that you
have from the school doesn’t verify that you’re not a contact. It
doesn’t verify that there’s somebody other than her who’s a
contact.”
C. The Admissible Evidence Does Not Compel a Finding a
Custody Modification Would Be in the Boys’ Best Interests
Father contends substantial evidence supported
modification of the July 2018 custody order to award him joint
legal and physical custody of the boys. Because the family court
22
found Father failed to carry his burden to show changed
circumstances supported modification of the 2018 custody order,
the question before us is whether the evidence compels a finding
in Father’s favor as a matter of law. (See Juen, supra, 32
Cal.App.5th at pp. 978-979; Dreyer’s, supra, 218 Cal.App.4th at p.
838.) It does not.
Father argued there were two changed circumstances:
Mother’s efforts to alienate the boys from Father (especially
Brendan), and Mother’s repeated violations of the custody
order.13 With respect to parental alienation, the family court
found credible Mother’s testimony that she did not interfere with
the boys’ visits; specifically, she did not monitor the boys’ calls
and she did not direct Brendan to bring food or clothing to
Father’s house. Nor was there evidence she restricted Brendan
from calling or spending time with Father. The court credited
Father’s testimony he had virtually no one-on-one time with
Brendan, but the court found this was not attributable to
Mother’s conduct. The DCFS social workers—whom the court
found credible—testified that Mother in 2019 engaged in
concerning behaviors such as speaking negatively of Father in
front of the children, coaching the children, and maintaining
excessive contact with Brendan. However, Morris testified the
social workers were not qualified to diagnose parental alienation,
and both Morris and Richard testified the allegation Mother
emotionally abused the boys was “unfounded.” Moreover, Father
did not introduce any admissible evidence the boys suffered from
13 Father argued there was a third changed circumstance—
that Mother committed emotional child abuse—but the argument
was based on his contention Mother engaged in parental
alienation, which constituted child abuse.
23
either parental alienation or emotional abuse—he did not call
any expert witnesses or treating therapists, instead relying solely
on his own unqualified opinion based on texts and articles he
characterized as “learned treatises” that were not in evidence.
Father also failed to show Mother violated the July 2018
custody order. There was no admissible evidence Brendan’s
refusal to go from Mother’s car into Father’s car during a
scheduled hand-off on December 29, 2020 was due to Mother’s
conduct, and Mother’s rejection of Father’s demand to deliver the
boys for a Sunday overnight visit on January 10, 2021 was based
on a reasonable interpretation of the custody order (that she was
entitled to custody of the boys as part of her winter vacation
custody time). With respect to Mother’s other alleged custody
violations, the family court found Mother credibly testified,
contrary to Father’s allegations, that she did not deny Father
access to the boys’ health insurance, social security cards, and
information pertaining to their schooling.
Father is correct there was undisputed evidence Brendan’s
mental and emotional well-being deteriorated after the July 2018
custody order, and in late 2020 Brendan expressed harmful
ideation. Further, Brendan’s therapist believed there was an
acute threat of self-harm. This was certainly a significant
changed circumstance. However, Father failed to present any
evidence showing that an award of joint physical and legal
custody to Father would benefit Brendan. (See Montenegro,
supra, 26 Cal.4th at p. 256 [the court “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”].) Specifically, Father did not present
any evidence, expert or otherwise, as to the underlying nature of
Brendan’s struggles or the best practices to address them.
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Indeed, Father agreed with Mother’s assessment that breaking
up Brendan’s week-long summer visits with Father in 2021 with
occasional afternoon visits with Mother improved Brendan’s
emotional well-being compared to the summer of 2020.
D. Father Has Not Shown Additional Errors by the Family
Court
Father’s additional contentions are not persuasive. First,
Father contends the family court’s denial of the RFO is
inconsistent with our observation in Stacy V. v. Frank B., supra,
No. B293010 that “Father can prospectively seek to restore joint
custody based on changed circumstances, including cessation of
the abusive messages, reduction in parental conflict, control of
his ‘obsessive fixation’ with the boys’ athletic grooming, and
compliance with the court’s orders. Further, even without a
change of custody, Father could in the future present evidence
that a modification of the visitation schedule (for example, by
restoring a weekend night) is in the boys’ best interest.” There is
no inconsistency. In his RFO, Father did not argue he moderated
the behaviors that led to his loss of custody, nor did he request a
limited modification of the vacation schedule. Although we noted
in our initial opinion that Father might in the future regain joint
custody of the boys, the changed circumstances rule sets a high
bar in recognition of “‘the paramount need for continuity and
stability in custody arrangements—and the harm that may result
from disruption of established patterns of care and emotional
bonds with the primary caretaker. . . .’” (Brown & Yana, supra,37 Cal.4th at p. 956.)
Second, Father argues there is a rebuttable presumption he
was entitled to joint custody under Family Code section 3044,
subdivision (a), which provides, “Upon a finding by the court that
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a party seeking custody of a child has perpetrated domestic
violence within the previous five years . . . against the child or
the child’s siblings. . ., there is a rebuttable presumption that an
award of sole or joint physical or legal custody of a child to a
person who has perpetrated domestic violence is detrimental to
the best interest of the child. . . .” This provision does not apply
because there has been no finding Mother perpetrated domestic
violence against either of the boys. To the contrary, after
investigating referrals in 2019 and 2020, DCFS found the
allegations of Mother’s physical or emotional abuse to be
unfounded.
Third, Father argues the family court took advantage of his
self-represented status and “took over question[ing] of the DCFS
witnesses in effect suppressing evidence.” However, there is no
rule that prevents a judge from questioning a witness. Further,
while it is true the family court posed numerous questions to the
DCFS witnesses, particularly during cross-examination, the court
did not restrict Father’s examination, and its questions did not
have the effect of “suppressing evidence.” To the contrary, many
of the court’s questions, especially during Father’s direct
examination, aided Father by reframing questions that were
confusing or objectionable or elicited unclear responses. Our
review of the hearing transcript shows the court to have been
very patient with Father and to have taken pains to ensure a full
and fair hearing.
Finally, Father contends the family court erred in denying
his request to examine Pedrick (the boys’ attorney) at the
evidentiary hearing. The court advised Father that Pedrick was
neither a party nor a percipient witness, and the court invited
Father to make an offer of proof. Father stated only that he
wanted to examine Pedrick about Pedrick’s September 28, 2020
26
email stating Brendan had been exhibiting harmful ideation.
The court allowed Father to question Pedrick in order to
authenticate the email and the attached email from Marsh. On
appeal, Father contends Pedrick was a percipient witness
because he had “written his opinion of the proceedings in a
responsive declaration” opposing the RFO. However, although
Pedrick filed an opposition as counsel for Brendan and Luke on a
mandatory family law form styled as a “responsive declaration to
request for order” (Judicial Council FL-320), Pedrick’s declaration
asserted a legal position on behalf of the boys and did not contain
factual testimony.14 The court therefore did not abuse its
discretion in refusing to allow Father to question Pedrick other
than about the emails.
14 Pedrick wrote in opposition to the RFO, “Legal custody has
been adjudicated over the course of numerous hearings, trials,
and appeals. [Father] has failed to introduce any credible,
admissible evidence supporting his claim that there has been a
significant change in circumstances warranting a modification of
the current, operative child custody orders.”
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DISPOSITION
We affirm the family court’s August 6, 2021 order denying
the RFO. Mother is entitled to recover her costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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