Peyton v. Kringlie







Filed 9/7/11 Peyton v. Kringlie CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

ANDREW PEYTON et al., Respondents, v. SARAH KRINGLIE, Appellant.

F059251 (Super. Ct. Nos. 07-226167 & 07-226321) OPINION

APPEAL from an order of the Superior Court of Tulare County. William Silveira, Jr., Judge.
Law Offices of Ronald A. Litz, Ronald A. Litz; McCormick, Barstow, Sheppard, Wayte & Carruth and Todd W. Baxter for Appellant.
David Minyard for Respondents.
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Appellant, Sarah Kringlie, is the mother of two children, Austin, born in 2000, and Adrian, born in 2002. Respondent, Andrew Peyton, is Austin’s father and respondent, Aaron Crisp, is Adrian’s father. The children were primarily cared for by Sarah and her mother, Rebecca Kringlie, until 2008. At that time, the trial court removed the children from Sarah’s custody and ultimately placed them with their respective fathers. The court ordered that the parents would share joint legal custody with primary physical custody with the fathers. Sarah was to have a graduated timeshare to be increased over time.
However, in 2009, orders to show cause to modify Sarah’s visitation were filed by Peyton and the minors’ counsel. Following the September 2009 hearing, the court ordered that the fathers were to have legal and physical custody of their respective child and that Sarah’s visitation be limited to therapeutic reunification. Any additional supervised visitation was to be decided between the parties by stipulation.
Sarah contends that the trial court abused its discretion in making these orders and therefore they should be reversed. According to Sarah, the evidence does not support the change in custody and visitation rights. Sarah further argues that the trial judge demonstrated bias against her and thus the matter should be assigned to another judicial officer.
As discussed below, Sarah is correct. Therefore, the order will be reversed and on remand, the case will be assigned to another judicial officer.
BACKGROUND
From the time the children were born until February 6, 2008, they lived with their mother, Sarah. Except for occasional visits to North Dakota, Sarah lived with her mother, Rebecca. Sarah has never been employed and was dependent on her grandfather, Lyle Kringlie, for her support.
On February 6, 2008, an ex parte hearing was held. The court found sufficient evidence to order an immediate change of custody of Austin and Adrian to Peyton on a temporary basis. The court found that Sarah and Rebecca “maintain the children in filthy living conditions, unhealthy, dangerous and that [their] upbringing was quite neglectful and that they were not providing appropriate schooling.”
On November 12, 2008, the parties stipulated to, and the trial court executed, an order regarding custody and visitation. The parents were to share joint legal custody with the fathers to have primary physical custody. Sarah was to have a graduated timeshare to be increased over time with the expectation that the parents would share joint physical custody equally within 6 to 12 months. Pending modification, Sarah was given supervised visitation on Saturday or Sunday each week and for one or two days during the week after school. Rebecca was not to have contact with the children, the reason being that the court wanted Sarah to develop independence and a separate identity from Rebecca. Janet Hunsaker was appointed as the parenting plan coordinator.
In 2009, Sarah moved from supervised visits to unsupervised day visits and then to one overnight each week with both Austin and Adrian. Sarah also provided daycare for Adrian and his stepbrother Aydan during the school summer recess.
In her August 2009 report, Hunsaker noted that the forward movement appeared to have gone steadily and smoothly. However, Peyton reported to Hunsaker that Austin “exhibited acting out behavior at home and school at the commencement of the unsupervised day visits.” In contrast, the overnight visits had not brought on any unusual or problematic behavior.
Hunsaker also reported on a July 2009 supervised visit between Rebecca and the children. The boys did not react to their grandmother as Hunsaker would have expected. Instead of being excited, both boys had to be coaxed by their grandmother to come closer and, after a hug, they resumed their previous activity. Hunsaker attributed the boys’ reaction to one of two causes. Either the children had had recent contact with Rebecca or they were uncomfortable about approaching someone they had not seen for a significant period of time.
Based on a number of suggestive indicators, Hunsaker stated she suspected that the children were having contact with Rebecca. These indicators included (1) Rebecca living near Sarah; (2) Rebecca being evasive about her residence; (3) Sarah’s lying about having had contact with her mother; (4) Adrian volunteering that Rebecca lives in Pixley; (5) Austin making an angry remark to Peyton that his “mom and grandmom” think Peyton is “a jerk”; and (6) Austin having regressed in his behavior at the commencement of the unsupervised visits with Sarah. Hunsaker concluded that “[i]f there is contact between Rebecca and the children and they have been coached to be secretive about the contact, it is very harmful to them.” Hunsaker noted that “it is clear both mother, grandmother, and children are capable [of] executing such a fraud.” Hunsaker surmised that “[w]hile there is no way to determine whether the boys have had contact with their grandmother, it is apparent that Sarah and Rebecca Kringlie have an extensive history of deceiving others in the past and continue to deceive others in the present. While the deceptions are not significant individually, the pattern of deception/non-truth continues which leads one to be suspicious of any and everything that is said.” Hunsaker recommended that Rebecca submit herself to the jurisdiction of the court for the purpose of psychological evaluations.
In August 2009, Peyton and the minors’ counsel each filed an order to show cause seeking a modification of Sarah’s visitation. This request was based on the allegations that Sarah had not abided by the terms of the court’s order in that she had allowed contact between the children and Rebecca and that the children had been told to lie about it. The parties requested that further visitation between Sarah and the children be supervised.
A contested hearing was held on September 11, 2009. Hunsaker, the parenting plan coordinator, was the only witness. Hunsaker testified that she was of the opinion that the children were required to keep secrets but that she did not know where the “coaching came from or where the directive came from.” However, she suspected it came from Rebecca. Nevertheless, Hunsaker stated that it was important for the children to have contact with their mother and that it would be beneficial for them to have supervised visitation with Sarah for six to eight hours, three or four times per week. Hunsaker did not believe that the fathers had the emotional tools and maturity to decide on behalf of their sons the nature and extent of the contact they should have with Sarah.
When questioned further about Rebecca’s alleged contact with the children, Hunsaker testified that she suspected that it had occurred. She further explained she believed that someone told the children not to tell but that she did not know who that person was. Hunsaker explained that she had no way of actually knowing whether Sarah ever coached the children. Regarding whether Sarah “participated actively in telling the kids to lie, to deceive, to not tell the truth,” Hunsaker stated “I don’t know that -- I don’t know that she’s capable.” Nevertheless, Hunsaker believed that “Sarah failed to protect the children by not refuting that, by not saying, no, you have to tell, you have to tell the truth.”
At the conclusion of the hearing, the court stated that it was the court’s opinion that Sarah “either inculcated in these children during the time that since the Court sign[ed] the order appointing a parenting coordinator or acquiesced in her mother’s teaching or enlisting these children to fail to reveal the truth or to lie about the nature and extent of the contacts with the grandmother.” The court believed that the circumstantial evidence, the declarations of witnesses that Rebecca was seen at the apartment complex where Sarah lived, and the children’s reactions to inquiries “about these things” substantiated this finding. The court found that Sarah had been given one year to attempt to change these behavior patterns and had not done so. The court stated that it believed, given the full history of the case, not just the history since the parenting coordinator was appointed, that exposing the children to further “inculcation of withholding information from their fathers or being deceitful about what is going on when they’re in the custody of their mother is very damaging” psychologically. Thus, the court granted full legal and physical custody of the children to their fathers. The court limited Sarah’s visitation to therapeutic reunification once a week. Any other supervised visitation was to be by stipulation signed by all parties. Finally, the court relieved both Hunsaker and the minors’ counsel.
DISCUSSION
1. The trial court abused its discretion in limiting Sarah to therapeutic reunification visitation.
It is the policy of this state to assure that, when making any orders regarding child custody or visitation, the court’s primary concern is the child’s health, safety, and welfare. (Fam. Code, § 3020, subd. (a).)
However, state policy also directs the court to assure that children have frequent and continuing contact with both parents after the parents have ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing. (Fam. Code, § 3020, subd. (b).) Preservation of parental relationships is in the best interest of the child and the parent. (Camacho v. Camacho (1985) 173 Cal.App.3d 214, 218-219.) Moreover, the relationship between parent and child is so basic to the human equation that it is recognized as a fundamental right to be protected by all society. Accordingly, interference with that right is justified only by compelling necessity. (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 641.) Thus, an affirmative showing of harm or likely harm to the child is necessary in order to restrict parental visitation. (In re Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1030.)
The trial court has broad discretion in modifying a prior custody and visitation order. (Schlumpf v. Superior Court (1978) 79 Cal.App.3d 892, 901.) The standard of appellate review is the deferential abuse of discretion test. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Thus, the trial court’s ruling will not be disturbed on appeal unless the record presents a clear case of an abuse of that discretion. (In re Marriage of Russo (1971) 21 Cal.App.3d 72, 86.)
Nevertheless, the trial court’s failure to consider all of the evidence is a failure to exercise discretion and requires reversal of the determination. (Schlumpf v. Superior Court, supra, 79 Cal.App.3d at p. 901.) Further, the trial court abuses its discretion when its essential findings are not supported by substantial evidence, i.e., evidence that is reasonable in nature, credible, and of solid value. (In re Marriage of Russo, supra, 21 Cal.App.3d at pp. 86-87.)
As discussed above, the trial court’s justification for modifying the November 12, 2008, custody and visitation order was its finding that Sarah had violated the court’s order by permitting Rebecca to have contact with the children. The court further concluded that Sarah either told the children, or acquiesced in Rebecca telling the children, to lie about their contact with Rebecca and that this was harmful to the children. Thus the critical finding upon which the court relied to drastically restrict Sarah’s visitation was that Sarah permitted Rebecca to have contact with the children.
However, substantial evidence does not support this essential finding. There was no solid evidence that Rebecca had contact with the children. Hunsaker testified that she merely suspected that the contact had occurred. A witness’s suspicion is not proof. In fact, in her August 2009 report, Hunsaker admitted that there was no way to determine whether the boys had had contact with their grandmother.
The other evidence relied on by the court is also insufficient. Rebecca being seen at Sarah’s apartment complex and with Sarah does not support finding that Rebecca had contact with her grandsons. At one point Rebecca lived at that apartment complex. Moreover, the court’s order did not prevent Sarah from seeing her mother.
Further, the court’s order is dramatically inconsistent with Hunsaker’s recommendations. The court effectively reduced Sarah’s visitation to one hour each week despite Hunsaker’s testimony that it was important for the children to have contact with their mother and that it would be beneficial for them to have supervised visitation with Sarah for six to eight hours, three or four times per week. Hunsaker additionally testified that the fathers were not mature enough to decide on behalf of their sons the nature and extent of the contact they should have with Sarah. Nevertheless, the court left the decision as to additional visitation in the hands of the fathers. Thus, it is apparent that the court failed to consider all of the evidence. Such a failure constitutes an abuse of discretion.
In sum, the lack of substantial evidence to support the essential finding and the trial court’s apparent failure to consider all of the evidence requires the reversal of the September 11, 2009 order modifying custody and visitation.
2. The trial judge’s apparent bias warrants assignment to a different judicial officer.
This case was assigned to Judge William Silveira, Jr. Sarah has requested that it be assigned to a different judicial officer on remand. According to Sarah, the record demonstrates an apparent bias against her on the part of Judge Silveira.
As this court explained in In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, “litigants and attorneys sometimes manifest their emotional pique at a decision by blaming the judge for being biased.” (Id. at p. 1326.) However, “the actions of a judge must not only be impartial, but they must be seen as impartial by a reasonable person.” (Ibid.) The trial of a case should not only be fair in fact, but should also appear to be fair. (Id. at p. 1328.)
Sarah is correct that Judge Silveira appeared predisposed to rule against her. The following comment made by Judge Silveira exemplifies this apparent bias. Near the beginning of the September 11, 2009, hearing, Sarah’s counsel stated:
“Well Your Honor, if whatever contact Rebecca Kringlie had with the children is irrelevant, that would take away I think the whole issue of whether or not Sarah violated the Court order and we could probably move right along. I think what the Court has said already is that this issue of Rebecca Kringlie’s contact with the children is of paramount importance.”
In response, the court stated:
“Mr. Aguirre, what is of paramount importance in this Court’s mind is whether Rebecca Kringlie and Sarah Kringlie are willing to indeed, I shouldn’t even say willing, I’m going to use a little stronger term. Have the capacity to set aside a pattern of grift and deception and act in these children’s best interest and I’m beginning to have doubts about that. Let’s proceed.”
To grift is to obtain money through illicit methods such as swindles or dishonest gambling. There was no evidence to support this disparaging description of Sarah. When Judge Silveira accused Sarah of engaging in a “pattern of grift and deception” and expressed doubt regarding her capacity to change, it appeared that Judge Silveira was inclined to rule against Sarah without regard to the evidence that was thereafter presented. It would therefore appear to a reasonable person that Judge Silveira was biased against Sarah.
Moreover, the severity of the restriction on Sarah’s visitation under these circumstances suggests unfairness. As discussed above, interference with the relationship between parent and child is justified only by compelling necessity and thus parental visitation will be restricted only upon an affirmative showing of harm or likely harm to the child. (Hoversten v. Superior Court, supra, 74 Cal.App.4th at p. 641; In re Marriage of Birdsall, supra, 197 Cal.App.3d at p. 1030.) Here, the circumstances are not extraordinary or exceptional and thus do not justify this severe restriction on Sarah’s visitation rights.
Accordingly, the appearance of fairness will be achieved only if this case is reassigned to another judicial officer.
DISPOSITION
The September 11, 2009 order is reversed and the matter is remanded to the family court. On remand, this case shall be assigned to a different judicial officer. Costs on appeal are awarded to appellant.


_____________________
LEVY, J.
WE CONCUR:


_____________________
WISEMAN, Acting P. J.


_____________________
KANE, J.


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