Filed 9/23/15 E.C. v. B.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

E.C., D066841

Plaintiff and Appellant,

v. (Super. Ct. No. ED88270)

B.F. ,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Robert Amador,

Judge. Affirmed.

Law Offices of Vincent W. Davis & Associates and Zahra Mohammed for Plaintiff

and Appellant.

No appearance for Defendant and Respondent.

E.C. (Mother) and B.F. (Father) never married but had two children together. When

they separated, Father moved to Northern California and the children remained with Mother

in San Diego County. The court initially awarded the parents joint legal custody with primary physical custody to Mother. About 18 months later, the court granted Father's

modification petition, and awarded Father primary custody. The court found changed

circumstances and the modification was in the children's best interests.

Mother appeals, contending the court abused its discretion in modifying the custody

arrangement. Father was unrepresented in the proceedings below and did not file a

respondent's brief in this court. However, an appellant has the burden of showing reversible

error even in the absence of a respondent's brief. (See Cal. Rules of Court, rule 8.220(a)(2).)

After reviewing the record and considering Mother's numerous arguments, we determine

Mother did not meet her burden to show reversible error.

FACTUAL AND PROCEDURAL SUMMARY1

Father and Mother lived together beginning in 2002, and had two sons born in 2007

and 2009. In April 2012 the couple separated and Father moved to Northern California

where he had family and believed he would have better employment prospects. The boys

stayed with Mother, who was living with the maternal grandmother and other relatives.

Mother and Father disputed custody, each seeking to provide the primary residence.

After a Family Court Services mediation in February 2013, the mediator recommended the

children stay with Mother and be allowed to visit Father at least one weekend per month, and

1 In designating the appellate record, Mother included evidence supporting her position but omitted various unfavorable documents, including Father's modification petition and the child welfare agency (CWS) reports reviewed by the court. This alone would permit us to conclude Mother has forfeited her appellate arguments. (See Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.) However, in the interests of justice we will consider Mother's appellate contentions after augmenting the record to include the entire superior court file. (Cal. Rules of Court, rule 8.155(a)(1)(A).) 2 during breaks and holidays. The mediator concluded the children would not benefit from

any major life change that would disrupt their established routines and current stable

situation.

In April 2013, the court issued an order adopting the custody and visitation

arrangement recommended by the family services mediator. Under this arrangement, the

couple would have joint legal custody; Mother would maintain primary physical custody

with visitations by Father; and they would meet at a halfway point to exchange the children.

Shortly after, Mother remarried and had a daughter with her new husband.

During the next year, Father successfully brought several motions compelling Mother

to abide by the court-ordered visitation schedule. While giving birth to a second daughter in

2014, Mother tested positive for marijuana. The hospital contacted CWS, which attempted

to conduct an investigation, but was unable to do so because Mother and maternal

grandmother refused to cooperate.

In June 2014, Father moved to modify the custody order and sought primary custody

of the boys. In support, Father filed a declaration asserting that Mother was not properly

providing for the children. He stated the boys (five and six years old) were not enrolled in

any school, including Mother's claimed homeschooling program. Father said that neither

child has had medical or dental care, and Mother refused to provide Father with insurance

information when he tried to make medical appointments for them. Father also said Mother

refused to cooperate with his visitations. He said he had five scheduled visits in the prior 12

months, but to implement the visits he required the assistance of law enforcement and/or a

court order. Father also stated there are nine people living in the maternal grandmother's

3 house, and the boys sleep in the living room on the floor. Father said the boys would have

their own bedroom in his residence and would be enrolled in a public elementary school and

daycare facilities. He said he lives with his girlfriend and has many family members in the

area who are available to assist with the boys' care.

In objecting to the custody change, Mother filed her own declarations stating she has

been the children's primary caretaker since their birth and the boys share a close bond with

their half-sisters and their maternal grandmother. She denied Father's assertions regarding

schooling, stating the boys have been in an accredited homeschool program and are now

enrolled in a public elementary school. She said Father has been "very difficult to deal

with," and was the cause of the problems with respect to visitation and that he "lied" to the

court on numerous occasions. She also stated Father has refused to pay the ordered child

support. She additionally denied using marijuana, stating her doctors had confirmed the

blood test result was a false positive caused by her gestational diabetes. She argued that

"Father's request to change custody is simply more of the same. . . . He has never met the

legal standard and it has never been about the boys. It is about power, control and payback."

After the parties participated in a second family services mediation, the mediator

recommended a custody change and that primary physical custody be granted to Father. The

mediator's reasons for this recommendation included: (1) Mother had failed to enroll the

children in school or in a valid homeschool program; (2) the CWS reports showed that

Mother and her family refused to allow investigators access to the home to evaluate the

children's status and welfare; (3) Mother failed to obtain required immunizations for the

4 children; and (4) the children lack basic skills including how to use forks and spoons.2

The court held a hearing on September 18, 2014. At the hearing, Mother's counsel

challenged each of the grounds for the report. With respect to the CWS investigation,

Mother's counsel said that CWS had since completed its investigation and concluded the

neglect allegations were " 'unfounded.' " Mother's counsel also represented that the children

were currently attending public school; both were "eligible" to be in second grade based on

their homeschool education; and they had their "first round of immunizations yesterday."

Counsel also argued that permitting Father to have primary custody would improperly

separate the children from their primary caretaker (Mother) and their two younger sisters (an

infant and a one-year-old).

In opposing Mother's arguments, Father emphasized the facts showing Mother had

refused to cooperate on child-rearing issues and had hindered his visitations, requiring

numerous ex parte motions "in this courtroom." He additionally challenged Mother's claim

that she had appropriately homeschooled the children. He stated: "My children [have]

missed entire years of education. [Mother] claims they should be in the second grade;

however, my oldest cannot read. He can barely spell his first name. . . . My children do not

meet the requirements to pass the first grade or kindergarten for that matter." Father

additionally discussed CWS's numerous prior contacts with Mother, and the fact that she

continues to test positive for marijuana.

2 The portion of the report identifying the grounds for the mediator's recommendation is missing from the record. Nonetheless we are able to describe the grounds based on statements made by Mother's counsel and the court at the hearings. 5 After considering the evidence and the parties' arguments, the court granted Father's

motion. The court explained its ruling as follows:

"I have seen the two of you here time after time after time. One of the issues is the fairness of whether or not [Father] is allowed to parent his child[ren]. Time after time [Mother] has refused to allow [Father] to parent his child[ren]. She has set up road block after road block. This court does not believe that [Mother] is willing to, in fact, allow him to parent his child[ren].

"The other thing is that this court does not believe that [Mother] is properly parenting the child[ren]. The home schooling that she does, this court has been given no information that this home schooling is being done. There is no home schooling. When [Mother] came here before . . . there was almost an entire year's worth of school that wasn't done. I am not sure what your idea of home schooling is, or what is going on, but that is not educating a child. It is a detriment to the child not to be properly educated.

"This court finds that there has been a detriment to the children [and] . . . finds it is in the best interest of the children to award custody to [Father] at this time. The court is going to follow the recommendation of family court services. [The parents] share joint custody. Physical custody, the children shall primarily reside with [Father]. Mother's time with the children will be according to the schedule defined under holiday and school vacations. The court will adopt the remainder of the report.

"[¶] . . . [¶]

". . . . This court does not make this decision lightly. This court considered this for a period of time. This court got the information from [CWS] and noted that [Mother] was extremely hostile in the past . . . when they came out to the residence. She refused contact by [the social worker].

"It doesn't matter to the court that [Mother] or her family is anti-government. That is their right as it is anybody's in regards to what their feelings are in regards to the government. There are plenty of people that feel that particular way when [CWS] is trying to do their job. They are essentially stopping [CWS] from determining what is in the best interest and welfare of the children. Only after the court essentially warn[ed] [Mother] of what is going to happen and [CWS] comes out and now there is this lingering report."

6 The court stated that because its determination had the effect of a "move away" order,

it would stay the order for 30 days until October 18. Mother's counsel asked the court to

instead stay the order for 90 days and conduct a review at that time to consider the updated

CWS report. The court denied the extended stay request, but scheduled a hearing on October

16 to consider any new circumstances or additional arguments.

Mother then filed a supplemental declaration and her counsel's declaration. In her

declaration, Mother repeated much of the information she had asserted earlier, including that

she has been the primary caretaker since the children's birth; she never hindered Father's

visitation; Father never fully exercised his visitation rights; and she had properly

homeschooled the children. She also said the children have been enrolled in a public

elementary school "since August 2014," and it would not be in the children's best interest to

disrupt their education. She asserted that she is not taking any drugs and it is "unfair" to use

positive drug tests against her. She said she has a history of false positive drug tests, and has

"sought the care of a doctor to determine why I am testing positive. My doctor believes that

a false positive drug-test could be attributable to numerous reasons including my insulin

spikes (gestational diabetes with every pregnancy) and low white blood count. My doctor

referred me to a specialist to determine why the drug tests are positive when I am not taking

drugs."

Mother also presented numerous photographs and other evidence showing the

children's homeschool work, school reports, and other activities.

In the updated CWS report, the CWS social worker concluded the current neglect

allegations were "Unfounded," stating "[t]here was no evidence to indicate that the

7 children's needs were not being met, even considering the fact that [Mother] tested positive

for marijuana." But the social worker found the potential risk to the children was "High, due

to [numerous] previous CWS referrals for [n]eglect." The social worker also discussed

Mother's prior refusals to permit an investigation, but willingness to do so now because of

the court's order.

At the October 16 hearing, Mother's counsel stated the primary problem concerned

the parents' lack of financial resources to transport the children and the parents' inability to

effectively communicate, and urged the court not to punish the children for these problems.

Counsel asserted that the children were well cared for and there were no changed

circumstances, and requested the court to review the most recent CWS report. In response to

the court's direct question, Mother denied using marijuana. Father discussed evidence

showing that Mother's claims about school enrollment and immunizations had been

documented to be false. He also reiterated that each time he attempted to visit with the boys,

he had been required to file ex parte motions with the court.

After considering the new evidence and arguments, the court denied Mother's request

that it change its September 18 order. The court expressed skepticism regarding the validity

of the recent CWS findings of no protective issues, noting that the investigation was

performed after a long delay and after Mother was aware the report would be presented to

the court for purposes of the custody proceedings. The court also discussed Mother's

positive marijuana test results, stating that Mother's denials and attempted excuses were

"ridiculous": "The drug test report that I have is not some dip stick report. This is a report

which . . . is a medical test . . . . [reflecting] nanograms per milliliter . . . ." The court stated

8 that "smoking marijuana is not a reason to take your children away . . . It doesn't mean that

you can't parent. It doesn't mean that you are a dangerous parent. But what happens is that,

to this court, when you are not truthful with the court, it makes everything else that you have

to say entirely suspect." The court then stated:

"This court remembers both of you over the last year. And what happens is it is in the best interest of the children for them to be properly educated. And what happens is that it is clear, over the last year or longer, that you've been home schooling the children, but . . . they haven't been properly educated. You'd like to say that they are. They haven't done what they were supposed to do, and it's the history of this particular case. You're not being honest with the court. You haven't been truthful with the court. And you weren't cooperative with child protective services.

". . . [A]nd you have not co-parented with [Father]. Now, he's missed some time. And the question is for this court, because he's missed some of his parenting time, does that mean the court should change the parenting plan? And that, in by itself, the answer is no. . . .

"But the problem is that it is the underlying problems with this where I have children[ ] who you simply refuse to educate . . . and you weren't educating them. And what happens now is that they're in a new school and suddenly [you are claiming] it is all better. What you've done in the past two months makes everything fine, where you're [previously] refused to parent. . . .

". . . And I made this decision a month ago. I said I'll . . . review this based on the [CWS] report. There's nothing in the [CWS] report that changes the court's mind from the decision that I previously had made, and the court is not changing its mind.

"The court feels that it is in the best interest of the children for the father to have the custody of them based upon all of the reasons which I have previously stated; that it is in their best interests that they are with their father."

9

DISCUSSION

I. Applicable Legal Principles

The legal standard governing a request to modify a custody arrangement depends on

whether the existing custody order is permanent or temporary. An existing permanent order

may be changed only upon a showing of a substantial change in circumstances.

(Montenegro v. Diaz (2001) 26 Cal.4th 249, 256 (Montenegro).) Under this rule, the moving

party must establish that the circumstances have changed and the custody modification is in

the child's best interests. (Ibid.) By contrast, to modify a temporary custody order, the

moving party must show only that the proposed modification is in the child's best interests,

and need not show changed circumstances. (Id. at pp. 255-259.)

Under either standard, we evaluate a court order granting a modification under a

highly deferential standard. (Montenegro, supra, 26 Cal.4th at p. 255; In re Marriage of

Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) Trial courts have broad discretion to determine

the appropriate custody arrangement. "The test is not whether this court would have made

the same order or whether the trial court could have reasonably made some other order, but

'whether the trial court could reasonably have concluded that the order in question advanced

the "best interest" of the child.' " (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.) We

may not reverse the court's best-interests determination unless the court's decision was

" ' "arbitrary, capricious, or patently absurd." ' " (In re Stephanie M. (1994) 7 Cal.4th 295,

318.)

10 When an appealing party challenges the sufficiency of the evidence supporting the

trial court's custody ruling, we affirm the order if it is supported by any substantial evidence.

(Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.) " ' "An appellate tribunal is

not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier

of facts. Only upon a clear and convincing showing of abuse of discretion will the order of

the trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it

is the trial judge's discretion and not that of the appellate court which must control." ' "

(Ibid.)

II. Analysis

The record is unclear whether the initial April 2013 court order was intended to be a

permanent, final order requiring a change of circumstances and a best interests showing, or

whether it was an interim order requiring only a best interests analysis. However, we need

not resolve this issue because the court's ruling was supported under both tests. The court's

order clearly encompassed findings on the children's best interests and changed

circumstances. The court granted Father's modification request based on its findings that

after its initial custody order, Mother repeatedly interfered with Father's visitations and

refused to provide a proper education for the boys. These were proper grounds to base the

custody modification ruling.

First, the evidence supports the court's conclusion that Mother had refused to engage

in appropriate coparenting, and had intentionally blocked Father's attempts to exercise his

visitation rights. A parent's interference with the children's contacts and relationship with the

other parent is a significant factor in a custody determination. (See Fam. Code, § 3040,

11 subd. (a)(1); In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1094, 1101 (LaMusga));

Burgess, supra, 13 Cal.4th at p. 36, fn. 6.) California has a strong public policy of

encouraging shared child rearing and "assur[ing] that children have frequent and continuing

contact with both parents . . . ." (Fam. Code, § 3020, italics added.) Thus, in making

custody determinations, courts must consider " 'which parent is more likely to allow the child

frequent and continuing contact with the noncustodial parent.' " (Keith R. v. Superior Court

(2009) 174 Cal.App.4th 1047, 1053; see In re Marriage of Steiner & Hosseini (2004) 117

Cal.App.4th 519, 529.) The court reasonably relied on Mother's history of frustrating

Father's contact with the boys to conclude Mother's continued custody was not in the

children's best interest and that Father would better assure the noncustodial parent (Mother)

would have the required visitation and a continuing shared bond with the children.

The court's focus on the children's educational needs was also a proper consideration

in making the best interests finding. (See Burgess, supra, 13 Cal.4th at p. 39.) The evidence

showed the boys were not receiving an appropriate education, either through a homeschool

program or enrollment in a public school. The court had a reasonable basis to find Mother's

homeschooling claims were not credible and her last-minute efforts to enroll the boys in a

public school did not show Mother was willing and able to provide an adequate education.

The court was further entitled to credit Father's assurances that he would fully provide for the

children's educational needs. The evidence also showed Mother and her family repeatedly

refused to permit the child welfare agency to investigate claims of neglect, leading to a

legitimate concern whether Mother was focused on her children's best interests, as opposed

to her own interests.

12 Mother contends the court did not sufficiently evaluate the children's "health, safety,

and welfare," including the potential detriment to the boys from being uprooted from their

established home, mom, grandmother, and siblings. Based on the court's statements, we are

satisfied the court fully considered these issues. In deciding to grant Father's motion, the

court implicitly found that any short-term detriment resulting from the move would be

substantially outweighed by the long-term benefits to the boys, particularly given the

children's young ages and ties with Father and the importance of a positive educational

experience in the early years. The court acted within its discretion in reaching this

conclusion. Although the need for stability in a child's life is of primary importance in

deciding custody arrangements, a court must consider all the relevant circumstances,

including a child's relationship with each parent, the relationship between the parents, and

the child's age, community ties and educational needs, and a court may properly decide these

latter factors are more important than the need for stability. (See LaMusga, supra, 32

Cal.4th at p. 1093; Burgess, supra, 13 Cal.4th at p. 39.)

Mother contends the trial court was motivated solely to punish her for her past

conduct, rather than to "judg[e] her ability to provide care for the children." Mother relies on

the court's comments about her failure to be truthful regarding her marijuana test results.

These comments do not show the trial court made its custody decision based on a desire to

punish or reward either parent. The court's statements about Mother's lack of honesty

reflected the court's concerns regarding the accuracy of Mother's assertions pertaining to her

ability to coparent and properly care for the children. These concerns were an appropriate

consideration in the overall best interests analysis.

13 Mother's arguments regarding legal principles applicable to a "[m]ove-away" case are

unavailing. First, this matter was not a move-away case, which concerns a custodial parent's

request for court approval to move with the child and/or a noncustodial parent's objection to

such a move. The facts here involved two parents who lived apart, and the decision as to

whether circumstances had substantially changed and which home would be the better for

the boys' long term best interests. But even assuming the move-away legal principles

applied, there was no abuse of discretion. Factors relevant to the best interest of the child in

a move-away case include "the children's interest in stability and continuity in the custodial

arrangement; the distance of the move; the age of the children; the children's relationship

with both parents; the relationship between the parents including, but not limited to, their

ability to communicate and cooperate effectively and their willingness to put the interests of

the children above their individual interests; the wishes of the children if they are mature

enough for such an inquiry to be appropriate; the reasons for the proposed move; and the

extent to which the parents currently are sharing custody." (LaMusga, supra, 32 Cal.4th at p.

1101.) The record supports that the court considered each factor, and decided that on

balance these factors weighed in favor of primary custody to Father.

We also find unhelpful Mother's argument that Father sought custody of the boys

based on his "bad-faith motives" to avoid paying child support. Mother raised this issue at

the hearing, and the court's comments and ruling show it rejected this argument. The court

had a reasonable basis to do so given Father's assertions in his declaration and his statements

under oath at the two hearings. The court further correctly noted that the issue before it

concerned the children's best interests and not support payments.

14 In challenging the court's factual conclusion regarding the children's best interests,

Mother essentially reasserts the same arguments she made to the family court in the

proceedings below. In so doing, Mother ignores the governing standard of review. The

issue before us is not whether this court would have reached the same conclusions as did the

trial court. Instead, it is whether the record establishes the court, which was highly familiar

with the history of the parties' custody dispute and had personally observed both parents and

carefully reviewed the family court services recommendations, abused its discretion in

reaching its own determinations on these issues. We find no abuse of discretion.

DISPOSITION

Order affirmed. The parties to bear their own costs on appeal.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

MCINTYRE, J.

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