K.B. v. E.L. CA2/2 ( 2021 )

Filed 1/26/21 K.B. v. E.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
K.B., B297820
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BF034950)
v.
E.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lawrence P. Riff, Judge. Affirmed.
Law Office of Earl Robertson III and Earl Robertson III for
Defendant and Appellant.
Michelman & Robinson and Reuben A. Ginsburg for
Plaintiff and Respondent.
______________________________
Appellant E.L. (father) appeals from a postjudgment order
denying his request to modify custody and requiring him to
complete reunification counseling before resuming visitation with
his son (minor, born 2007). Finding no abuse of the family court’s
discretion, we affirm.
BACKGROUND
I. The 2016 Judgment
The family court entered judgment in this parentage case
in 2016.
Respondent K.B. (mother) was awarded sole legal and
physical custody of minor. Father was entitled to visitation on
specified Saturdays and Sundays. He was required to provide 48
hours’ advance written notice of his planned activities with minor
for mother to advise of “any necessary health-related precautions
relating to them.”1 Mother was to provide all meals and
beverages for minor to consume during his visits with father;
father was not to provide any additional food or beverages except
for bottled water.
Father could attend school or extracurricular events
involving minor even if they occurred during mother’s custodial
time. Father was also entitled to at least one 45-minute call with
minor each week.
Mother was required to provide written notice to father
regarding all significant educational or health issues and to
consult with him before making any significant decisions in those
areas.
1 Minor has severe food and environmental allergies and also
suffers from asthma and celiac disease.
2
II. Father’s Request for Order (RFO) to Modify Custody
In March 2018, father filed an RFO to modify custody on
the ground that mother had violated the 2016 judgment in
numerous respects, including thwarting father’s visitation.
Father sought primary physical custody of minor and joint legal
custody.
III. Hearing
The hearing on father’s RFO to modify custody took place
over the course of three days in January and March 2019. The
family court heard testimony from father, mother, minor’s
maternal grandmother, and minor’s maternal aunt.2
A family court services specialist who had interviewed
minor also testified. She stated that minor had a “generally
positive” perception of mother but a “generally negative”
perception of father. Minor told her that he was scared of father
because father had previously used his finger to flick the side of
minor’s head, father sometimes followed them, and minor
sometimes had the feeling that father would not bring him back.
Minor stated, “I just don’t really want to see my father because
he really stresses me out.” The specialist believed minor when he
said that he felt stressed out, but she did not believe that minor
was “truly frightened of father” or that father had “injured” or
neglected him.
2 In May 2018, mother filed a request for a domestic violence
restraining order (DVRO) against father. The family court
denied mother’s request in November 2018, finding that she
failed to carry her burden of proof. In deciding father’s RFO, the
family court also considered evidence received in connection with
mother’s DVRO request.
3
At the conclusion of the hearing, mother’s counsel argued
that minor had severe health issues that father did not know how
to handle. Minor felt comfortable and safe with mother and had
a stronger emotional bond with her. Reunification with father in
a clinical setting would be an appropriate way to allow minor to
bond with father.
Father’s counsel contended that mother’s violations of the
2016 judgment were designed to frustrate father’s parental rights
and constituted a significant change of circumstances. When
asked by the family court if a series of counseling sessions
between father and minor would be a “[g]ood idea or bad idea[,]”
father’s counsel stated: “I believe it’s a great idea . . . . I believe
that counseling sessions could definitely benefit this bond
because [minor] needs someone to talk to, and I am sure that
[father] will benefit from being in that type of environment,
and . . . maybe they’ll be able to better understand each other.”
The family court took the matter under submission.
IV. Ruling
On March 21, 2019, the family court issued its ruling on
father’s RFO to modify custody.
A. Factual findings
The family court found that both mother and father were
“in violation of the judgment in various and serious particulars.”
Mother’s violations were “more pervasive and severe than
father’s” (fn. omitted), but both parents were “serial violators.”
Mother had at times “improperly denied father visitation.”
Mother had also failed to comply with the judgment’s
requirements to keep father informed in writing of significant
educational and health issues and to consult with him.
4
The family court agreed with father “that mother fe[lt]
entitled to decide when and under what conditions father w[ould]
see [minor] and that mother’s behavior in this regard [was]
improper gatekeeping.” At other times, however, mother’s
“refusal to permit visitation [was] justified on account of father’s
failure to comply with the terms and conditions of the judgment.”
The family court did not find that minor’s “health
conditions are such that father cannot properly care for [him]
during father’s periods of visitation.” It expressed concern, but
did not find, that mother had occasionally “used ‘[minor’s] too
sick’ as an excuse to deny father visitation.” It was also
concerned, but did not find, “that father ha[d] been less than
rigorous as to his responsibilities for his telephone/Skype time.”
Finally, the family court found that the dispute between
mother and father, as well as minor’s “reluctance to see his
father[,] pose[d] a substantial danger to his best interests.”
B. Orders
The family court declined to modify legal or physical
custody as set forth in the 2016 judgment.
The family court ordered mother to obtain, and provide to
father, reports from minor’s pulmonologist and allergist stating
any limitations on activities necessary due to minor’s health
conditions. Father was ordered to “conform his activities with
[minor] to adhere” to those limitations. If mother denied father
visitation “on account of an asserted health issue,” she was
required to provide father with supporting documentation from a
physician.
The family court also ordered father and minor to engage in
counseling sessions prior to the resumption of father’s visitation.
The counselor was to first meet separately with father and minor
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for a maximum of three sessions each. Father and minor were
then to participate in a minimum of four conjoint sessions “with
the goal of repairing their relationship.”
V. Notice of Entry of Order
A minute order dated March 21, 2019—the same day that
the family court issued its order on father’s RFO—states: “The
[c]ourt having taken the mat[t]er under submission on March 19,
2019, hereby rules as follows: [¶] The court makes its order
pursuant to the Ruling on Submitted Matter signed and filed this
date. [¶] Clerk is to give notice.”
Directly below, on the same page, the following title
appears in bold type: “CLERK’S CERTIFICATE OF
MAILING/NOTICE OF ENTRY OF ORDER[.]” Immediately
below that, the superior court clerk certified that it mailed the
notice of entry of the minute order to mother and to father’s
counsel on March 21, 2019. The address listed for father’s
counsel is a post office box in Pasadena.
VI. Appeal
On May 21, 2019, father filed a notice of appeal from the
family court’s March 21, 2019, order.
DISCUSSION
I. Timeliness of Appeal
Father filed his notice of appeal 61 days after the superior
court clerk mailed the notice of entry of the family court’s order.
If the clerk’s mailing constituted proper service to father, father’s
appeal would be one day late, requiring dismissal. (Cal. Rules of
Court, rule 8.104(a)(1)(A), (b) & (e).)
We invited the parties to submit letter briefs to address
this issue. In his letter brief, father contends that the notice of
entry was mailed to his counsel’s post office box in Pasadena even
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though that address never appeared on documents filed in the
family court.3 Mother fails to address this contention.
The record supports father’s position. Because the notice of
entry of order was not served to the address of record for father’s
counsel, service was improper. (Code Civ. Proc., § 1013; Cal.
Rules of Court, rule 8.104(a)(2).) Accordingly, father’s appeal is
timely because it was filed within 180 days of the entry of the
order. (Cal. Rules of Court, rule 8.104(a)(1)(C).)
II. Denial of Father’s Request to Modify Custody
Father contends that the family court abused its discretion
by denying his request to modify custody.
A. Standard of review
We review a ruling on a request to modify child custody
under the deferential abuse of discretion standard. (Ellis v.
Lyons (2016) 2 Cal. App. 5th 404, 415.) A “court abuses its
discretion if there is no reasonable basis on which the court could
conclude that its decision advanced the best interests of the
child.” (Mark T. v. Jamie Z. (2011) 194 Cal. App. 4th 1115, 1124.)
B. Relevant law
Once a permanent custody order is entered by a family
court, “‘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.” (In re Marriage of
Brown & Yana (2006) 37 Cal. 4th 947, 956 (Brown & Yana).) A
parent seeking to modify a permanent custody order must
3 Father speculates that the post office box address was
obtained by the superior court clerk through a search of his
attorney’s profile on the State Bar of California Web site.
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“demonstrate[] ‘a significant change of circumstances’ indicating
that a different custody arrangement would be in the child’s best
interest.” (Ibid.)
C. Analysis
Given “the importance of stability and continuity in the life
of a child, and the harm that may result from disruption of
established patterns of care and emotional bonds” (Burchard v.
Garay (1986) 42 Cal. 3d 531, 541), a strong presumption existed
that the status quo should be preserved by denying father’s
request to modify the custody arrangement set forth in the 2016
judgment. The family court could reasonably conclude that this
presumption had not been rebutted and that it was in minor’s
best interest to remain in mother’s sole physical and legal
custody.4 Mother had great familiarity with minor’s health
issues and strict dietary requirements, and minor had a generally
positive perception of her compared to a generally negative
perception of father. Under these circumstances, no abuse of
discretion can be found.
Attempting to resist this conclusion, father contends that
the family court failed to properly weigh the evidence and he
critiques its credibility determinations. “In reviewing the lower
court’s ruling for abuse of discretion, we do not reweigh the
evidence or evaluate the credibility of witnesses.” (Ryland Mews
4 The family court made no explicit finding regarding
whether father had demonstrated a change of circumstances. It
did not need to. Because father had the burden of showing that
both a change of circumstances had occurred and that modifying
custody would serve minor’s best interests (Brown & Yana,
supra, 37 Cal.4th at p. 956), the family court could deny father’s
request to modify custody based only on the conclusion that it
was not in minor’s best interests.
8
Homeowners Assn. v. Munoz (2015) 234 Cal. App. 4th 705, 712.)
Those determinations are solely within the province of the trier of
fact, here the family court. (As You Sow v. Conbraco Industries
(2005) 135 Cal. App. 4th 431, 454.)
Father also argues that the family court’s refusal to modify
custody cannot be reconciled with its factual findings that were
adverse to mother. We disagree. The family court correctly
recognized that mother’s violations of the 2016 judgment were a
factor it could consider in determining whether to modify custody.
(Jane J. v. Superior Court (2015) 237 Cal. App. 4th 894, 907.) But
it also correctly noted that such a factor had to “be seen in the
context of the best interest of . . . minor.” The family court’s focus
properly remained “on the best interests of [minor], and not on
penalizing” mother. (In re Marriage of C.T. & R.B. (2019)
33 Cal. App. 5th 87, 107.)
III. Counseling Order
Father also challenges the family court’s order requiring
him to participate in counseling as a precondition to resuming
visitation. We review for abuse of discretion. (Montenegro v.
Diaz (2001) 26 Cal. 4th 249, 255.)
A. Relevant law
Family Code section 3190, subdivision (a),5 provides that a
family court “may require parents . . . and the minor child, to
participate in outpatient counseling with a licensed mental
health professional, . . . for not more than one year, . . . if the
court finds both of the following: [¶] (1) The dispute between the
parents[ or] between the parent or parents and the child . . .
5 All further statutory references are to the Family Code
unless otherwise indicated.
9
poses a substantial danger to the best interest of the child. [¶]
(2) The counseling is in the best interest of the child.”
The family court must “set forth reasons why it has found
both of the following: [¶] (1) The dispute poses a substantial
danger to the best interest of the child and the counseling is in
the best interest of the child. [¶] (2) The financial burden
created by the court order for counseling does not otherwise
jeopardize a party’s other financial obligations.” (§ 3190,
subd. (d).)
B. Analysis
In light of the animosity between mother and father,
minor’s reluctance to see father, and minor’s expressed fear of
father, the family court’s counseling order—with its express goal
of repairing father and minor’s relationship—was eminently
reasonable. Even father’s counsel told the family court that such
sessions between father and minor would be “a great idea” and
could benefit their relationship.
Father contends that the family court failed to set forth
reasons why it found that the dispute between mother and father
posed a substantial danger to the best interests of minor, as
required by section 3190, subdivision (d). The reasons for the
finding are readily discernable from the record. The acrimonious
relationship between mother and father and the stress it caused
minor—a child already dealing with significant health issues—
posed a substantial danger to his best interests. And, the family
court impliedly found that this change of circumstances justified
the counseling order to the extent it modified visitation.
10
Father also disputes the applicability of section 3190,
arguing that it was intended for cases involving child abuse or
neglect. He relies solely on In re Chantal S. (1996) 13 Cal. 4th
196. But that case is inapposite, as it held that section 3190 does
not apply to juvenile dependency cases. (In re Chantal S., supra,
at p. 208.)
DISPOSITION
The order is affirmed. Mother is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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