Marriage of Hart CA4/1

Filed 8/17/22 Marriage of Hart CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of NOOSHIN and
DANIEL HART.
D078836
NOOSHIN HART,
Appellant, (Super. Ct. No. D553836)
v.
DANIEL HART,
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Jeffrey B. Barton and Margo Lewis Hoy, Judges. Affirmed as modified.
Beatrice L. Snider and John L. Romaker for Appellant.
Bickford Blado and Botros and Andrew J. Botros for Respondent.
Nooshin Hart (Mother) and Daniel Hart (Father) were divorced in 2018
and share two children, one minor and one adult. After a judgment denying
Mother’s request to move away with the minor child, and awarding legal and
physical custody to Father, Mother challenges other portions of the judgment:
(1) requiring her to have no contact with the minor child for a period of 60
days; (2) limiting her contact with the minor child to conjoint therapy
sessions until “released by the therapist”; (3) allowing daytime visitation only
after conjoint therapy is successfully completed; and (4) requiring her to
attend individual therapy until her therapist “feels it is no longer needed.”
Mother does not appeal the denial of her move-away request or the custody
award.
With one exception, we conclude that Mother’s appeal of the contact
and visitation conditions has been rendered moot by superseding visitation
orders. The exception is Mother’s contention that the court violated Family
Code section 31901 by ordering her to participate in conjoint and individual
therapy for an indefinite duration. Section 3190, subdivision (a), requires
that the court-ordered therapy be limited to no more than one year. We
therefore modify the portion of the judgment requiring Mother to participate
in conjoint and individual therapy indefinitely. We limit the duration of the
court-ordered conjoint and individual therapy to one year, subject to entry of
a new order on request of a party under subdivision (e). In all other respects,
the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father married in 1998 and had two children, one born in
2000 and one born in 2007. The parties separated in November 2014, and
Father moved out of their residence while Mother and the children remained.
When the parties divorced in May 2018, the judgment of dissolution set a
date for an evidentiary hearing on custody and visitation issues, and also
ordered conjoint therapy for Father and the children. Mother later reported
that the children refused to participate in conjoint therapy, and the assigned
therapist ended their treatment because the minor child “needed individual
therapy first.” The minor child only attended a few individual therapy
1 All further undesignated statutory references are to the Family Code.
2
sessions with another therapist before that therapist ended the sessions for
lack of progress. Meanwhile, the custody and visitation hearing was
continued to allow time for the therapy process to play out.
In April 2019, Mother requested an order permitting her to move with
the minor child to Redlands, California, where the adult child would be
attending college. At Father’s request, the court appointed a custody
evaluator to provide recommendations regarding Mother’s request to relocate.
(§ 3111.) The evaluator’s report was to be submitted in August 2019, but the
evaluation was still not done a year after that deadline, partly because
Mother refused to participate out of concern about COVID-19.
In September 2020, the court issued an order compelling Mother and
the minor to appear at the evaluator’s office and instructing the evaluator to
follow public health recommendations. However, Mother did not comply with
the court’s orders and the evaluator resigned, citing ethical concerns after
Mother told him that the evaluation process was causing her and the minor
child “a great deal of distress[.]” The evaluator informed the parties’ counsel
that in light of such distress, additional efforts “to complete this evaluation
seem both counter-productive for [the minor’s] well-being and counter-
productive for the completion of an evaluation[.]”
The parties proceeded to trial in October 2020 without the benefit of a
custody evaluation and sought resolution of several issues, including custody
of the minor child2 and Mother’s request to relocate with the minor to
Redlands, California. Evidence introduced at trial included allegations of
domestic violence by both parties. Mother and the adult child both stated
that Father was physically abusive, but the minor child did not complain of
2 While the case was pending, the adult child reached the age of majority
and emancipated.
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physical abuse. Father denied he was violent with Mother or the children,
and testified that Mother had acted violently against him on multiple
occasions.
Mother and both children reported that Father was disengaged at
times and described incidents in which he “zoned out” and became
nonresponsive for extended periods, including while driving. Father denied
that such incidents occurred. Mother and both children also described a time
when Father did not feed the children while Mother was recovering from
surgery. Father said that he “always tr[ied] to have food at home” and that
he picked up dinner for the family almost every night on his way home from
work.
Text messages introduced at trial showed that when Father attempted
to meet with the children post-separation, Mother often said they were
unavailable for reasons such as the weather being too hot or rainy, the
children being tired or “not ready,” and frequent illness. Mother rebuffed
Father’s attempts to schedule make-up days for these missed visits and
repeatedly referred to the children as “my babies.” The adult child said that
he and the minor did not want to see or speak with Father, but Father said
there were times when he spoke with the children directly and they were
affectionate or expressed their excitement to spend time with him.
According to both parties’ accounts, Mother was very anxious about
germs. One therapist who saw Father and the minor child for conjoint
therapy said her impression of Mother was that she was “very protective” of
the children and was “probably overly involved in [their] life[.]” Another
therapist who treated the parties noted that Mother “ ‘parentifies’ ” the adult
child by giving him responsibility for the minor child.
4
After trial, the court issued a statement of decision in November 2020,
which was incorporated by reference into a judgment dated March 1, 2021
(March 2021 judgment). The court found the allegations of physical abuse by
Mother and the adult child not credible, citing among other things a lack of
corroboration and the fact that Mother and adult child both previously denied
violence in the home.
The court noted “a long pattern by Mother of involving the children in
the divorce and causing them to suffer what she then report[ed] as severe
emotional distress caused by Father” attempting to see the minor child. The
court found that Mother had a “long history” of “infantilizing the children,
and parentifying” them. Specifically, the court stated that the text messages
regarding Father’s visits contradicted Mother’s testimony and confirmed her
“infantilization of her children.” The court expressed concern “that there may
be a mental health issue affecting Mother[,]” citing her demeanor while
testifying and evidence concerning her credibility. The court observed that
Mother “could greatly benefit from treatment.”
As for Father, the court found that he “had a detached parenting style
and deferred much of the decision making concerning the children to
Mother.” The court noted that Father failed to prevent Mother’s infantilizing
and enabled her domination and control of the children. At the same time,
the court found that Father appeared to have a good relationship with the
children in the two years following separation despite Mother’s “thwarting
Father’s many requests to have contact” with the children during that time.
After enumerating these findings and analyzing relevant factors for
evaluating a move-away request, the trial court denied Mother’s request to
relocate. The court awarded legal and physical custody of the minor child to
Father and ordered him to enroll the minor in therapy as soon as possible.
5
To facilitate the transfer of custody, the court also ordered that Mother have
no contact with the minor for 60 days following the exchange of custody, and
that her contact thereafter be in the presence of a therapist for conjoint
therapy “until released by the therapist.” The court conditioned Mother’s
future daytime visitation with the minor on successful completion of conjoint
therapy, and then ordered Mother to immediately begin individual therapy,
which would continue until her therapist “feels it is no longer needed.” The
court also ordered Father to immediately attend therapy until his therapist
“feels it is no longer needed.”
Mother appealed the court’s March 2021 judgment. While this appeal
was pending, the trial court issued an order on December 7, 2021 (December
2021 order), after a hearing in October 2021, and another order on July 29,
2022 (July 2022 order), after a hearing in May 2022.3 In the December 2021
order, the court stated it had “exercised its discretion” and ordered that
Mother’s “current Monday visitation” with the minor child be expanded to
include visitation on Saturday mornings for two additional hours, and that
“[a]ll visitation shall remain professionally supervised.”4 The court said it
would allow these Saturday visits to take place somewhere “other than the
supervisor’s office.” The court also ordered that when the minor child was
ready, Mother could be allowed to attend school concerts. After finding that
3 We grant Father’s unopposed motion to augment the record with the
July 2022 order. We deny Mother’s August 4, 2022 motion to augment the
record with documents she filed in the trial court in June 2021 on the
grounds that the motion is untimely and these documents are unnecessary to
our resolution of this appeal.
4 The record on appeal does not include the order granting Monday
visitation to Mother, which was apparently issued between the March 2021
judgment and the December 2021 order allowing additional Saturday
visitation.
6
“the conjoint therapy has been beneficial” for the minor child, the court
ordered that both parents “equally pay” for conjoint therapy costs.
In the July 2022 order, the court granted Mother unsupervised visits
with the minor on Mondays and Wednesdays after school until 7:30 p.m. and
on Saturdays from 9:00 a.m. to 1:00 p.m., beginning May 4, 2022. The order
further stated that beginning May 21, 2022, the Saturday visits would be
extended to 6:00 p.m. In issuing this order, the court expressly rejected the
recommendation of the conjoint therapist to delay implementation of
unsupervised visits.
DISCUSSION
I
As noted, Mother does not challenge the trial court’s denial of her
move-away request or its award of physical and legal custody to Father. She
only challenges aspects of the court’s March 2021 judgment limiting her
initial contact with the minor child and requiring her to participate in
conjoint and individual therapy. Specifically, she argues that the court
abused its discretion by barring her from contact with the minor for 60 days
and then conditioning daytime visitation on the success of conjoint therapy.
She also contends that the court’s decision to limit her visitation in those
respects was not supported by substantial evidence; the court did not exercise
informed discretion; and the court improperly delegated its discretion to the
conjoint therapist. Finally, Mother challenges the open-ended duration of the
required counseling under section 3190.
Father argues that Mother’s appeal has been rendered moot by the
December 2021 order granting Mother supervised Saturday morning visits in
addition to Monday visits, and the July 2022 order granting Mother
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unsupervised visits on Mondays, Wednesdays, and Saturdays. As to all but
one of the issues Mother raises on appeal, we agree.
Issues in a case that involved actual controversies at the outset may
become moot due to intervening events, such that the court can no longer
grant effectual relief as to those issues. (Placer Foreclosure, Inc. v. Aflalo
(2018) 23 Cal.App.5th 1109, 1112–1113; Association of Irritated Residents v.
Department of Conservation (2017) 11 Cal.App.5th 1202, 1222.) Absent a few
exceptions, a court will not pass upon moot questions or abstract propositions
that cannot affect the matters at issue in the case before it. (In re David B.
(2017) 12 Cal.App.5th 633, 644 (David B.).) Those exceptions for which a
court may exercise discretion to resolve otherwise moot issues include:
(1) when the case poses an issue of broad public interest that is likely to
recur; (2) if it appears the same controversy between the parties is likely to
recur; and (3) if a material question remains for the court’s decision. (Ibid.)
We conclude that Mother’s challenge to the trial court’s limits on her
initial contact with the minor child is moot. Mother does not dispute that the
initial 60-day no contact period has expired, and she is now being allowed
unsupervised visits with the minor child on Mondays, Wednesdays, and
Saturdays under the terms of the July 2022 order. We cannot grant any
effective appellate relief as to this portion of the original judgment because
we do not have the power to rewind time or undo the past. (Cf. C.A. v. C.P.
(2018) 29 Cal.App.5th 27, 44 [challenge to court-ordered paternity test was
“moot because we cannot undo that which was done”].) This part of Mother’s
appeal is moot.
Similarly, Mother’s challenges to the provisions of the March 2021
judgment limiting her contact with the minor to conjoint therapy and
conditioning daytime visitation on the success of conjoint therapy are also
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moot. Under the terms of the superseding visitation order of July 2022, the
trial court has now granted Mother unsupervised daytime visitation rights
with the minor child beyond the conjoint therapy sessions. Moreover, the
record discloses that the court did not delegate its judicial authority to the
conjoint therapist in issuing the December 2021 and July 2022 visitation
orders. As Father points out, the trial court explicitly stated in both orders
that it “exercised its discretion” in making the findings and orders therein,
and in the July 2022 order, it expressly rejected the conjoint therapist’s
recommendation to delay unsupervised visitation. Because we can no longer
grant effective relief as to Mother’s challenges relating to those superseded
portions of the March 2021 judgment, we find them moot.
Mother argues that even if we conclude those issues are moot, we
should exercise our discretion to decide them. We decline to do so. The
mooted issues are case- and fact-specific and do not implicate broad public
interest concerns which are likely to recur; nor do they have precedential
consequence in future litigation generally. (See David B., supra,
12 Cal.App.5th at p. 654 [“We see no basis for exercising discretion to address
the fact-specific questions whether [appellant] was described by [Welfare and
Institutions Code] section 300, and whether the juvenile court’s
determination on that point is supported by substantial evidence.”]; In re
Andres G. (1998) 64 Cal.App.4th 476, 484 [declining to address merits of moot
challenge of order requiring parent’s psychological evaluation because such
orders are “so case[-]specific that little use would be served” by review of the
matter in any given case].) The same controversies are also unlikely to recur
between the parties because the trial court’s reasons for initially imposing
limits on Mother’s visitation—the sensitivity surrounding the minor child’s
transfer of custody and Mother’s past non-compliance with court orders—are
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no longer present. No material questions remain for the court’s decision on
these issues. Accordingly, we decline to address the merits of Mother’s
appeal of the visitation restrictions in the March 2021 judgment.
II
One non-moot issue remains for the court’s decision. Mother argues
that the trial court violated section 3190 by ordering her to participate in
conjoint and individual therapy without limiting the therapy’s duration to no
more than one year. We agree.
Section 3190 authorizes a court to order parents in a custody or
visitation dispute, and the minor child, to participate in outpatient
counseling for not more than one year, provided the court makes specific
findings regarding the best interest of the child, the financial burden created
by the order, and who should bear the cost of counseling if applicable.
(§ 3190, subds. (a), (c), & (d).) Section 3190 and its precursor, former Civil
Code section 4608.1 (repealed by Stats. 1992, ch. 162, § 3, eff. Jan. 1, 1994),
were enacted to address due process concerns associated with requiring a
parent to undergo involuntary therapy or counseling in a family court setting
outside of dependency jurisdiction. (In re Chantal S. (1996) 13 Cal.4th 196,
207, 210–211; In re Katherine M. (1994) 27 Cal.App.4th 91, 99–100.) Among
the Legislature’s chief concerns was that any counseling order be of limited
duration and automatically expire. (See Katherine M., at p. 100.)
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Section 3190, subdivision (a) explicitly limits the permissible duration
of court-ordered outpatient counseling to “not more than one year.”
Subdivision (e) further provides: “The court shall not order the parties to
return to court upon the completion of counseling. Any party may file a new
order to show cause or motion after counseling has been completed, and the
court may again order counseling consistent with this chapter.”
We conclude that the lack of durational limits on the court-ordered
conjoint and individual therapy violates section 3190, subdivision (a).5
Specifically, the court required Mother and the minor child to participate in
conjoint therapy “until released by the therapist” and required Mother to
attend individual therapy “until her therapist feels it is no longer needed.”
The judgment provided no end date for the required therapy, and it appears
from the December 2021 order that at least the conjoint therapy was still
ongoing at that time.6 Similar open-ended counseling orders have been
found to violate a parent’s due process rights. (See In re Marriage of
Matthews (1980) 101 Cal.App.3d 811, 817–818 [absent legislative
authorization for counseling of indefinite duration as a condition of visitation,
such order violates parent’s due process rights]; Camacho v. Camacho (1985)
173 Cal.App.3d 214, 221 [same].)
5 Mother has not challenged the sufficiency of the trial court’s findings
under section 3190, so we need not address that here. (Okorie v. Los Angeles
Unified School Dist. (2017) 14 Cal.App.5th 574, 600 [“Matters not properly
raised or that are lacking in adequate legal discussion will be deemed
forfeited.”].)
6 Over one year has passed from the date of the March 2021 judgment,
but there is no indication in the record that Mother’s court-ordered conjoint
and individual therapy has been terminated.
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Father claims Mother waived or invited this error by not objecting to
the court’s order in May 2018 requiring that Father participate in conjoint
therapy, and again by joining a stipulation and order in October 2018
requiring Father’s individual therapy—neither of which included a
durational limit. We find no waiver. The orders in May and October 2018
were separate orders from the one being appealed, and they required only
Father’s participation in therapy. The fact that Mother did not object to those
orders does not preclude her from appealing the lack of durational limits in
the March 2021 judgment, which requires her to participate in therapy
indefinitely. Furthermore, because the court exceeded its legal authority
under section 3190 as a matter of law, the error is not waived, even though
Mother did not raise the objection to the trial court. (See Fladeboe v.
American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 59 [“a party does not
waive objections to legal errors appearing on the face of the statement of
decision by failing to respond to it”].) And contrary to Father’s contention,
the error is not harmless because had the court complied with section 3190,
the required therapy would have been restricted to one year or less.
Finally, we reject Father’s contention that the court-ordered conjoint
therapy does not constitute “counseling” within the meaning of section 3190
because section 3190 “is designed to address an individual’s issues like
‘mental health or substance abuse.’ ” Section 3190 expressly states that a
court “may require parents . . . and the minor child” to participate in
counseling services “including, but not limited to, mental health or substance
abuse services[.]” (Italics added.) Nothing in the statutory language
supports Father’s interpretation of section 3190 as only applying to
individual therapy as opposed to conjoint therapy.
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DISPOSITION
The judgment is modified to limit the duration of Mother’s court-
ordered participation in conjoint and individual therapy to one year. Because
the one-year period has already passed, Mother will no longer be required to
participate in conjoint or individual therapy after issuance of the remittitur,
unless the trial court enters a new order upon request of a party under
Family Code section 3190, subdivision (e). Nothing in this opinion shall
preclude Mother from continuing to participate voluntarily in conjoint or
individual therapy. The judgment is affirmed as so modified. The parties
shall bear their own costs on appeal.
BUCHANAN, J.
WE CONCUR:
HALLER, Acting P. J.
DATO, J.
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