Marriage of Hartnett CA3

Filed 9/2/14 Marriage of Hartnett CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
In re the Marriage of JONATHAN W. and C072815
STACEY V. HARTNETT.
(Super. Ct. No. T-DR-0000159)
JONATHAN W. HARTNETT,
Respondent,
v.
STACEY V. HARTNETT,
Appellant.
We write here another chapter in this family law saga. Stacey V. Hartnett
(mother) raises two basic contentions in this appeal, both of which stem from an interplay
between a juvenile court determination and certain family court orders. In a prior appeal,
we overturned the juvenile court determination. (In re A.H. (Aug. 8, 2012, C066971)
[nonpub. opn.].)
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Specifically, mother contends that our invalidation of the juvenile court
proceeding (1) invalidates the requirement that her in-person visitation with her daughter
be supervised, and (2) constitutes a substantial change of circumstances for custody
modification. We disagree and shall affirm the two postjudgment family court orders at
issue. Given that mother’s contentions on appeal present essentially legal issues, we will
discuss those contentions straightaway, weaving the pertinent facts into those discussions.
DISCUSSION
I. Supervised Visitation
For several years, mother and Jonathan W. Hartnett (father) were engaged in a
highly contentious divorce, a remnant of which is an ongoing custody and visitation
dispute involving their lone child (hereafter daughter), who was born in July 2002.
Based on a child custody evaluation in 2007 that expressed concerns about
mother’s emotional stability and noted father’s more reasonable and stable presentation,
the family court in 2008 granted mother and father joint legal custody of daughter, but
awarded father primary physical custody.
Based on another child custody evaluation in 2010 from a new evaluator, the
family court, in a June 3, 2010 order, awarded father full legal and physical custody of
daughter “until such time as the parties are able to work more cooperatively with each
other,” and allowed mother unsupervised visitation. (This order is sometimes referred to
as the July 21, 2010 order, which actually is the date of filing the order from a June 3,
2010 hearing.)
After considering a social worker’s reports, the juvenile court, in August 2010,
found prima facie evidence that daughter was a child described by Welfare and
Institutions Code section 300, subdivision (c) (hereafter section 300(c))—i.e., at
substantial risk of serious emotional damage from mother, if the juvenile court did not
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assume jurisdiction. Accordingly, the juvenile court, in August 2010, placed daughter in
father’s home while allowing mother limited supervised visitation. In November 2010,
the juvenile court sustained the section 300(c) petition and declared daughter a dependent
of the court; as a result, the juvenile court, among other things, removed daughter from
mother’s care and custody, placed daughter with father, and changed mother’s supervised
visitation to a therapeutic setting.
On August 24, 2011, the family court held an all-day contested hearing on father’s
request for a move-away order, to move, with daughter, to Plattsburgh, New York. At
this hearing, mother, represented by counsel, presented abundant evidence and cross-
examined father’s witnesses. The family court granted the move-away order, noting
explicitly that the goal, concerning mother’s visitation, was that therapeutic supervised
visitation would “transform [eventually] into nontherapeutic and eventually to
unsupervised visits.”
A year later, in August 2012, we reversed the juvenile court’s November 2010
jurisdictional order, and vacated the juvenile court’s dispositional judgment and all
subsequent orders predicated on the November 2010 jurisdictional order. We concluded
“[there] was no evidence that [daughter] was at risk of serious emotional damage if the
juvenile court did not assume jurisdiction”; and we noted the family court could “enter
orders addressing custody, visitation, and counseling for parents and [daughter]. ‘This is
part and parcel of the family law court’s role.’ [Citation.] ‘ . . . “The juvenile courts
must not become a battleground by which family law war is waged by other means.” ’ ”
That brings us to the present proceedings.
On the heels of our juvenile court reversal, mother moved in family court to
modify child custody and supervised visitation, among other things. A four-day trial
ensued (with a statement of decision on Sept. 26, 2012), followed by another exhaustive
proceeding involving mother’s motion for a new trial and request for in-person visitation
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in California (with an order dated Nov. 26, 2012). Mother was almost entirely
unsuccessful, except the family court did permit supervised visitation to now take place
also in California (in addition to New York) on certain stated conditions.
Mother appeals here from the September 26 and November 26, 2012 family court
orders. (Code Civ. Proc., § 904.1, subd. (a)(2).)
Mother argues the family court here abused its discretion by not deleting the
supervised visitation requirement.1 Mother specifically asserts that supervised visitation
was not included in the family court’s last valid custody order before the juvenile court
ordered supervised visitation (i.e., the family court’s June 3, 2010 order), so supervised
visitation is only a vestige of the juvenile court proceedings that we invalidated. In a
nutshell, mother claims the downfall of the juvenile court’s determinations means the
downfall of supervised visitation.
We review visitation orders under the deferential standard of abuse of discretion.
(Montenegro v. Diaz (2001) 26 Cal. 4th 249, 255 (Montenegro).) We see no abuse of
discretion here.
The problem with mother’s argument is that the family court, in its August 24,
2011 move-away order, after affording mother full due process, itself ordered that
mother’s in-person visitation with daughter remain supervised. The family court’s
August 24, 2011 move-away order came after the juvenile court’s orders of supervised
visitation.
As the family court in the present proceedings on appeal here clarified, in denying
mother’s motion for a new trial (concerning mother’s current largely unsuccessful request
to modify custody and visitation), “[T]he [August 24, 2011] move-away order was
1 Mother may have unsupervised visitation via telephone or Skype.
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decided on the basis of the existing family court custody order of June 3, 2010, and the
abundant evidence the parties presented at the August 24, 2011 short cause trial. The
[family court] visitation orders were made independently of, and without reference to, the
juvenile proceedings. Although this court noted [(i.e., the current family court in its
Sept. 26, 2012 statement of decision, at p. 5)] that the [August 24, 2011] move-away
order ‘followed in some respects’ the juvenile court order regarding ‘supervised or
therapeutic visitation,’ the court’s observation on that point does not mean that this court
believed the family court blindly copied the juvenile court’s visitation orders at the
August 24, 2011 trial. The context of this court’s statement [of decision] plainly
demonstrates that the visitation orders made by the two courts [(i.e., the family court in
its Aug. 24, 2011 move-away order, and the juvenile court)] were merely similar in some
respects.” “The [August 24, 2011] move-away order was plainly not ‘predicated’ on the
juvenile court’s custody order.”2
The only evidence mother can point to countering this characterization of
supervised visitation orders from the family court and from the juvenile court is to note
that the family court, in its June 3, 2010 and August 24, 2011 orders, did not attach
Judicial Council Form FL-341(A), which is to be attached to orders of supervised
visitation to explain the basis for supervision. But this evidence of a missing form pales
against that of the family court’s August 24, 2011 move-away order itself, which is in the
2 The current family court added that it “did not make any ‘finding of supervised
visitation’ . . . . It merely left intact the August 24, 2011 family court visitation orders
[(i.e., the move-away order)] as modified by subsequent family court orders.”
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record before us; this August 24 order notes supervised visitation and states the basis for
ordering supervision.3
We conclude the family court did not abuse its discretion by continuing to require
that mother’s in-person visitation be supervised.
II. Custody Modification
Mother also contends the family court abused its discretion by not modifying
custody after we invalidated the juvenile court custody order, because this invalidation
was a substantial change in circumstances that allowed the family court to consider
whether custody modification was in daughter’s best interest. We disagree.
We review custody orders under the deferential standard of abuse of discretion.
(Montenegro, supra, 26 Cal.4th at p. 255.) We see no abuse of discretion here.
The fact that we invalidated the juvenile court’s jurisdictional order and
dispositional judgment because there was no evidence, as section 300(c) requires, that
3 At oral argument, mother’s counsel emphasized the point that the family court, at the
August 24, 2011 move-away hearing, did not find or indicate the basis for a finding,
independently from the juvenile court, that mother’s visitation with daughter needed to be
supervised. That point is belied by: (1) the August 24, 2011 family court’s specific
statements on the record concerning supervised visitation (e.g., “the goal” is for
“supervised visits [to] transform into nontherapeutic and eventually to unsupervised
visits”; “[b]oth parties shall set up Skype from their homes for the minor to communicate
with therapist and mother for visits [and] work with the therapist, so the minor can go on
Skype and speak to mother more often without the therapist supervising the visits”); (2)
the August 24, 2011 family court’s finding that “there have been long-standing issues
with [mother’s] anger and animosity, impulse control, both in and outside the company of
[her] daughter, which clearly have been detrimental to [daughter’s] best interests” (this
finding was made in the move-away custody context, but it is reasonable to infer the
family court used this finding to support its order of supervised visitation as well, given
the language of the finding and the fact that the family court uttered it immediately after
discussing supervised visitation); and (3) the current family court’s observation, quoted
above, that the August 24, 2011 family court’s order was “plainly not ‘predicated’ on the
juvenile court’s . . . order.”
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daughter was “at risk of serious emotional damage” from mother, does not automatically
or inherently translate into a substantial change of circumstances on which to modify
custody in mother’s favor. A section 300(c) risk of serious emotional damage is defined
legally as “a substantial risk of severe emotional harm.” (In re Brison C. (2000)
81 Cal. App. 4th 1373, 1379, italics added.) A family court modifying child custody
between two parents is one thing; a juvenile court assuming dependency jurisdiction for a
child’s welfare is quite another; it is a more serious judicial intervention requiring a more
serious showing.
In a related matter on this issue of modifying custody, mother claims the family
court abused its discretion by limiting itself to deciding whether mother or father should
have sole physical and legal custody, rather than realizing it had a broad range of options
in the custodial and visitation contexts to preserve frequent and ongoing contact between
mother and daughter. The present issues of child custody and visitation consumed four
days of trial in the proceedings on appeal here, and also were the subject of an exhaustive
motion for new trial proceeding. Suffice it to say, all matters on these issues were
covered. The family court did realize the broad range of options before it, as evidenced
by its decision to expand the site of in-person supervised visitation from just New York
to New York and California, while continuing unsupervised visitation via telephone or
Skype. And the family court explained, in 19 written pages, under both the legal standard
of changed circumstances and the legal standard of the best interests of the child, its
reasons for denying mother’s motion to change custody and visitation (with the exception
of the California in-person supervised visitation just noted). In short, the family court
knew what it was doing, and exhaustively did it, in deciding mother’s motion to modify
custody and visitation.
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DISPOSITION
The postjudgment orders of September 26, 2012 (custody, visitation, etc.) and
November 26, 2012 (denying new trial/granting California in-person supervised
visitation, etc.) are affirmed. Father is awarded his costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(1), (2).)
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
MURRAY , J.
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