Filed 8/13/26 Hess v. Bogolea CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
JEFFREY T. HESS,
F089117
Appellant,
(Super. Ct. No. FL-13991)
v.
SHAWNA BOGOLEA,
Respondent.
APPEAL from an order of the Superior Court of Tuolumne County. Hallie
Gorman Campbell, Judge.
Jeffrey T. Hess, in pro. per., for Appellant.
Shawna Bogolea, in pro. per., for Respondent.
-ooOoo-
Jeffrey Hess and Shawna Bogolea are the unmarried parents of one minor child,
H. Following Hess’s arrest for driving under the influence with H. in the car, the trial
court suspended his custody and visitation, appointed a custody evaluator, and ultimately,
after a five-day trial conducted over several months, awarded Bogolea sole legal and
physical custody. The court ordered Hess into individual and conjoint therapy as a
precondition to resuming visitation with H. and potentially regaining custody.
Hess, representing himself, appeals from the order awarding Bogolea sole custody,
raising 17 claims of error. We conclude Hess has failed to demonstrate reversible error
on any of his claims. We affirm.
BACKGROUND
A. Previous Litigation
Hess and Bogolea were never married and have one child together, H., a son born
in October 2013. Jeff petitioned to establish his parental relationship in January 2016.
Since that time, the parties have been engaged in protracted litigation over custody and
visitation.
The penultimate court proceeding ended with an order modifying custody and
visitation filed April 6, 2021. Since 2013, parenting time fluctuated between supervised
visitation for Hess and an equal, week-on/week-off timeshare. The equal timeshare
arrangement generally remained in place until December 2019 after Bogolea presented
evidence that Hess had tested positive for cocaine and lacked stable housing. The court
ordered no visitation for Hess for a short period, then ordered greatly reduced, supervised
visitation.
At a three-day long cause hearing in January 2021, the court heard evidence,
among other things, that Hess had no positive drug tests after 2019, was engaged in
ongoing counseling addressing anxiety, PTSD, depression, and substance-use triggers,
but continued to reside with his mother, Caroline Cruz, whose home contained numerous
firearms—an arrangement the court found problematic given Hess’s status as a convicted
felon prohibited from possessing firearms. The court also noted concerns about Cruz’s
conduct in the parties’ co-parenting dynamic, describing Cruz as having a “caustic and
meddlesome nature.” The court also criticized Bogolea’s admitted unauthorized access
to Hess’s phone to obtain his drug test results.
2.
Based on the evidence, the court found that Hess had made sufficient progress to
warrant a return toward equal parenting time and ordered a graduated “step up” plan as
follows: (1) beginning April 12, 2021, Hess would have parenting time after school each
school day until 5:30 p.m.; (2) beginning April 23, 2021, Hess would have parenting time
on alternating weekends from after school on Friday until 7:00 p.m. Saturday;
(3) beginning the Thursday following the last day of the 2020–2021 school year, Hess’s
alternating-weekend time would expand to run from 9:00 a.m. Thursday through
7:00 p.m. Sunday; and (4) beginning the first Tuesday of the 2021–2022 school year, the
parties would return to full alternating-week custody, exchanging the child at school on
Tuesdays.
The court further required each parent to facilitate nightly telephone or video
contact between H. and the other parent, and provided that all prior orders not
inconsistent with these provisions would remain in full force and effect. One of the prior
orders was that neither parent was to drink alcohol while H. was in their custody.
B. Current Litigation
On October 2, 2021, shortly after the parties began the full, alternating-week
parenting schedule contemplated by the final stage of the 2021 step-up plan, Hess was
stopped and arrested for driving under the influence with seven-year-old H. in the car. H.
was not properly restrained; he was in the front seat with a booster seat. Bogolea soon
after filed for emergency custody of H., which was granted, and a trial date was set on the
issue of custody modification.1 Ahead of the trial, the court appointed child custody
evaluator Kelli King to conduct an evaluation regarding custody of H.
Trial was conducted intermittently over five nonconsecutive days in 2024:
March 3, April 30, May 29, July 3, and September 10. Hess represented himself
1 The trial court and parties called the long-cause hearing in this case a “trial.” We
will continue with that convention for convenience.
3.
throughout. The court heard testimony from King; Sarah Collie, H.’s therapist; Officer
Kevin Willingham, the investigating officer for Hess’s DUI arrest; Bogolea; Hess; and
Cruz; among others.
Officer Willingham testified that while investigating Hess for DUI, Hess
registered preliminary alcohol screening results showing a blood-alcohol content of
.079% and .086%. Officer Willingham also detected an odor of alcohol on Hess and
observed he had red, watery eyes and slurred and mumbled speech. Field sobriety tests
also showed indicators of impairment. Officer Willingham explained that Hess’s account
of having consumed just two drinks over a three-hour span and finishing his last drink
several hours ago did not support those readings. A blood sample drawn about two hours
later showed a blood alcohol content of .05%. The Tuolumne County District Attorney
decided not to prosecute Hess, citing insufficient evidence.
Hess testified about the night of his DUI arrest. He stated he left the house he
shared with his then-girlfriend that night to escape a domestic violence incident in which
he was the victim. He took H. with him to remove H. from the “abusive situation.” He
acknowledged that by drinking that night he violated the court order prohibiting both
parents from drinking alcohol with H. in his custody. Video evidence showed Hess using
profanity and verbally abusing his then-girlfriend before leaving the house.
Bogolea testified that she called Tuolumne County Sheriff’s dispatch that night to
relay what Hess’s girlfriend had told her, which was that Hess and the girlfriend had
argued, that Hess had left with H. in the car, and that he had been drinking. She also
testified the girlfriend had asked her to make the call to law enforcement. Hess stated
that Bogolea and the girlfriend conspired to have him falsely arrested that night.
King submitted a written report, which was admitted into evidence. She testified
that although Hess maintained Bogolea was alienating H. from him, her evaluation found
the opposite. Hess and his mother, Cruz, made alienating statements to H. and punished
him for discussing Bogolea, and no evidence showed that Bogolea coached H. on what to
4.
tell King or that his stated discomfort around Hess was anything other than genuine.
King also testified that Cruz significantly interferes with Hess and Bogolea’s co-
parenting relationship and violates boundaries. King stated that Hess is “dependent upon
[Cruz] for her advice and guidance,” that this dependency makes it “difficult for him to
make independent decisions,” that it affects H. “in a very negative way,” and that Hess
“needs to build confidence in his own parenting skills.”
The trial court granted Hess’s in limine motion under People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez) to exclude case-specific hearsay from King’s testimony,
including H.’s out-of-court statements to her, unless independently proven. However, the
court later found that Hess’s own cross-examination of King elicited much of that
excluded material, including H.’s statements to King, and the court considered that
evidence to the extent Hess himself introduced it.
H.’s therapist, Sarah Collie, testified consistently with King’s account, describing
H.’s anxiety and altered demeanor when discussing Hess and testifying she observed no
signs that Bogolea had coached him. Collie noted that during video visits between Hess
and H., Hess would fail to recognize when H. wanted to change the subject. She
observed H. to be more assertive with Bogolea than with Hess. While discussing Hess’s
DUI arrest, H. cried intensely and curled up on the floor.
Following the 2021 custody order, Hess did not complete two court-ordered forms
of counseling. The parties were ordered into co-parenting counseling with Aimee
Schultz. Bogolea testified they attended one session, Hess canceled the second, and Hess
refused to pay his portion of the copay for the third session so the counselor refused to
see them. Hess was separately referred to reunification therapy with Loretta West, which
began around August or September 2021 and continued “sporadically” until the end of
December 2021 when Hess refused to go anymore. Hess testified he stopped seeing
West after 10 visits “for a bunch of reasons,” including that he could not afford it.
5.
Bogolea testified that Hess and Cruz have told her she is a “horrible parent,”
which causes her stress. She stated she was willing to resume co-parenting counseling
with Schultz. She testified co-parenting with Hess had been challenging and things had
not improved since the 2021 custody order, but still she encouraged Hess and H. to mend
their relationship through reunification counseling.
The trial court issued its statement of decision on October 10, 2024.2 The court
found that Hess’s blood alcohol content was “.07” or “.08” on the roadside test, and since
Hess said his last drink was at 11 p.m., this “would mean his blood alcohol level was
falling at the time of the” blood test. The court stated it was thus “very likely that he
could have been at .08 or more when driving.” The court also stated: “The [district
attorney] decided not to file charges, and it very well could be because they saw what this
Court saw: He was in fact leaving a domestic violence situation. It’s a justification, but
it does not mean it was the right choice. And it still put [H.] in danger. Additionally,
[Hess] was not following court orders in deciding to drink that night while [H.] was in his
care. If [Hess] stopped drinking at 11 p.m., he had to have had more than two drinks to
have a .07 or .08 by 2:43 a.m., almost 4 hours later. [Hess] was certainly intoxicated
when he was caring for [H.] and video evidence showed he was slurring his words.”
The court found the DUI arrest, combined with King’s alienation findings and the
brevity of the alternating-week schedule before it was interrupted, constituted a sufficient
change in circumstances to warrant modification. To that point, the court found an
immediate transition to 50/50 custody “would be traumatic for a child who was having
trouble with his father respecting boundaries on a video call.” The court awarded
Bogolea sole legal and physical custody, ordered Hess into individual psychotherapy
addressing substance use and boundaries, ordered conjoint therapy for Hess and H. as a
precondition to resumed visitation. It set out a graduated return to unsupervised visitation
2 All references to dates are to dates in 2024 unless stated otherwise.
6.
to begin once at least 10 joint therapy sessions were completed. The court also set a
graduated return to custody of H. for Hess to be implemented when Hess was “ready.”
On November 4, the court ordered that its statement of decision become the order
after hearing, and Hess appeals from this order.
DISCUSSION
A. Principles of Appellate Procedure
“ ‘A judgment or order of the lower court is presumed correct[…] and error must
be affirmatively shown. This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) It is appellant’s burden to overcome the presumption of
correctness. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)
A judgment or order ordinarily may be reversed or modified on appeal only for
prejudicial error. Trial court error is prejudicial only if it resulted in a miscarriage of
justice—where it appears reasonably probable a result more favorable to appellant would
have been reached but for the error. (Cal. Const. Art. VI, § 13; Code Civ. Proc., §§ 475,
906; Evid. Code, § 353, 354.) That said, denying a party a full and fair opportunity to
present all competent, relevant, and material evidence bearing upon any issue properly
presented to the trial court for determination is reversible error per se. (In re Marriage of
Carlsson (2008) 163 Cal.App.4th 281, 290–292, 294.)
Appellant’s burden also includes the obligation to present cogent argument
supported by legal analysis and citation to the record on each point raised. (Hernandez v.
First Student, Inc. (2019) 37 Cal.App.5th 270, 277; United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United Grand Corp.).) This requires
more than simply stating a bare assertion that the judgment or order is erroneous and
leaving it to the appellate court to figure out why; it is not the appellate court’s role to
construct theories or arguments that would undermine the judgment or order and defeat
7.
the presumption of correctness. (See Dilbert v. Newsom (2024) 101 Cal.App.5th 317,
323; Lee v. Kim (2019) 41 Cal.App.5th 705, 721.)
B. Issues
1. Right to Fair and Timely Trial
The hearing in this case lasted five days, spread out over six months. Hess asserts
the “extended delays and fragmented scheduling” violated his “right to a fair trial.” He
states in conclusory fashion, without citing any facts, that the delay prevented him from
presenting a “cohesive case, recall[ing] testimony accurately, and respond[ing]
effectively to the opposing party’s claims.” He also claims, also without citing any facts,
that witness memories faded and evidence was lost. These bald assertions lacking any
citation to the record or developed argument fall well short of demonstrating error.
(United Grand Corp., supra, 36 Cal.App.5th at p. 146.)
2. Admission of Hearsay (Sanchez)
Hess next complains the trial court “erred in admitting and relying on a custody
evaluation that was based on inadmissible hearsay, in violation of People v. Sanchez
(2016) 63 Cal.4th 665 [(Sanchez)].” He again fails to demonstrate error.
In Sanchez, the California Supreme Court clarified when an expert may rely on
hearsay, and whether such hearsay can be related to a jury. The Court stated “[a]ny
expert may still rely on hearsay in forming an opinion, and may tell the jury in general
terms that he did so,” but “cannot … relate as true case-specific facts asserted in hearsay
statements, unless they are independently proven by competent evidence or are covered
by a hearsay exception.” (Id. at pp. 685–686, italics omitted.) Consequently, testimony
relating “ ‘case-specific facts about which the expert has no independent knowledge,’ …
unlike testimony about non-case-specific background information, is subject to exclusion
on hearsay grounds.” (People v. Veamatahau (2020) 9 Cal.5th 16, 26, italics omitted.)
“Although Sanchez is a criminal case, it also applies to civil cases … to the extent it
addresses the admissibility of expert testimony.” (People v. Bona (2017) 15 Cal.App.5th
8.
511, 520; see also In re Marriage of Lietz (2024) 99 Cal.App.5th 664, 673 [“the Sanchez
rule concerning state evidentiary rules for expert testimony applies in civil cases”].)
Hess asserts King relied on various hearsay statements in her report, including
letters from Bogolea’s friends and family, text messages provided by Bogolea, and
statements from non-parties. But even if this were true, this does not constitute reversible
error. Hess overlooks that the trial court stated in its statement of decision that it
considered all case-specific hearsay Hess elicited but excluded all other case-specific
hearsay not independently proven. Hess cites nothing in the record showing the court did
not do just that, and thus he has failed to show the court erred.
3. Custody Evaluation Was Biased, Inaccurate, and Lacked Foundation
Hess argues King’s evaluation was “biased, inaccurate, and lack[s] foundation,
resulting in prejudice.” He says King relied only on Bogolea’s evidence and ignored his,
which shows a “one-sided approach” that “undermined the neutrality of a court-appointed
evaluator.” He contends the trial court erred in admitting King’s report into evidence and
relying on it because it contained hearsay and was biased. This claim fails partly for the
same reason as the previous claim. That is, the court stated it was not relying on case-
specific hearsay not independently proven, and nothing shows the court did otherwise.
Moreover, Hess does not even attempt to show a reasonable probability of a different
outcome absent the admission of King’s report. (Evid. Code, § 353.)
4. Ex Parte Communications
Hess contends that King; King’s attorney, Eric Emanuels; and Bogolea’s attorney,
Julie Salkeld, engaged in impermissible ex parte communications with one another.
By way of background, King retained Emanuels to represent her after she was
issued an order to show cause for failing to appear on the third day of trial despite having
been personally served with a subpoena. The court discharged the OSC once King
appeared and confirmed she was prepared to resume testifying.
9.
Hess supports his claims with citations to a declaration King filed and a
declaration Emanuels filed in connection with the order to show cause. Exhibits attached
to these declarations included emails between Salkeld and King about King not being
properly served with a subpoena. There was also an email from Salkeld to King with a
copy to King’s attorney providing instructions on how King can report that she has been
a victim of witness intimidation.
With some enumerated exceptions, ex parte communications are prohibited in
child custody proceedings between a court-appointed child custody evaluator and the
attorney for a party. (Cal. Rules of Court,3 rule 5.235(a) & (e).) We need not address
whether any of the communications Hess complains of violated these rules because Hess
has not articulated a standard of prejudice or even explained how he was prejudiced by
these communications. He asserts the communications were “designed to shape the
evaluator’s perceptions and testimony” and demonstrated “coercive conduct,” but he does
not explain how these communications had any tendency to manipulate or coerce or how
they affected King’s testimony at all. The failure to show prejudice is fatal to the claim.
5. The Trial Court Was Biased for Denying Accommodations
Hess argues the trial court erred by denying him reasonable accommodations, in
violation of the Americans with Disabilities Act (ADA) and his right to due process and a
fair trial. He claims he has a “documented traumatic brain injury and speech impairment,
which slow his speech and require additional time to formulate questions, particularly
during cross-examination.” However, he cites only his mother’s statement to the court
during trial that Hess’s “disability makes it a little hard to read and think.”4 He does not
cite anything to show what kind of disability he has or how it affects him. He cites
3 Further citations to rules are to the California Rules of Court.
4 Because Cruz had requested grandparent’s visitation, she was joined to the case
and was present in court.
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portions of the trial transcripts where he claims the court was impatient with him,
interrupted him, and rushed him along in his examination of witnesses, despite knowing
of his traumatic brain injury. His argument implies that reasonable accommodation
would have been to give him more time to ask his questions.
None of the pages Hess cites show that the court was impatient with him. For
example, in one instance, Hess tried asking a witness about a video, and the court
interrupted to say that they were not going to spend time on the video and asked him to
move on to his next topic. In another instance, Hess was looking for a document to show
a witness, and the court said he did not have to provide the document and instead could
just testify that he provided it. The court then said he could move on to his next question
and testify to that fact at the appropriate time. None of the cited portions of the record
demonstrate the court was impatient or disrespectful toward Hess. Instead, they show the
court appropriately controlling the flow of the trial and interrupting only to guide Hess as
necessary to ensure a fair trial for all parties. In fact, there was one instance in the trial
during Salkeld’s questioning of a witness where Hess asked for a brief pause to go
through a report to find where Salkeld’s questions were coming from, and Salkeld
objected, calling it a stall tactic. The court said, “I’m going to give him a minute, Ms.
Salkeld. [¶] Go ahead, look.”
More fundamentally, Hess does not explain specifically how the trial court’s
alleged failure to accommodate his disability affected the trial. For example, he does not
explain how he was unable to thoroughly examine or cross-examine witnesses, make
objections, or address issues with the court. Our review of the entire trial record shows
Hess was able to ask all the questions, raise all the issues, and present all the arguments
he wanted. Accordingly, he has failed to show reversible error.
6. Judicial Bias
Hess contends the court was biased against him for three reasons. First, he asserts
the court instructed him to “move on” or told him “next question” during his questioning
11.
of witnesses, whereas Bogolea’s counsel was “allowed extensive, often repetitive
questioning without limitation.” He provides a long string of cites to the reporter’s
transcript where the court purportedly told him to move on to his next question, but he
does not discuss any of these instances. We have looked at those places in the record
ourselves, and nowhere does the trial court show bias or impatience.
Many of the cited instances instead show the court prompting Hess to ask his next
question after the court made an evidentiary ruling. In one instance, Hess asked King if
certain letters she received were hearsay, and the court said, “That’s a legal conclusion.
Next question.” In another, the trial court sustained its own hearsay objection to one of
Hess’s questions and prompted him to ask his next question. The other cited instances
are similar in that they reflect the court managing the trial in a regular, even-handed
manner.
For his second assertion of judicial bias, Hess reproduces the ADA violation
argument that he raised in his fifth claim of error. We have already rejected this.
Third, Hess claims the court showed bias by expressing “personal opinions and
disparaging remarks” in its written ruling. He cites the court’s finding that Hess “sees
conspiracies everywhere.” This is a factual finding, not an expression of a “personal
opinion.” And while it is indeed a negative finding for Hess, nothing in the record shows
the court intended to disparage Hess with this finding.
We reject these arguments.
7. Denial of Right to Cross-examine Remote Witness
Hess contends he was denied his right to properly cross-examine King while she
testified remotely because he was unable to show her exhibits. He cites pages in the
record where this purportedly happened but does not describe any of these instances. As
it turns out, none of those pages show anything of the sort. We have reviewed the entire
record ourselves, and there was no instance in which King was unable to view an exhibit
Hess was questioning her about. Hess’s claim is meritless.
12.
8. Trial Court Relied on Speculation
Hess contends the trial court erred “by relying on speculation, personal opinion,
and unsubstantiated allegations of intoxication to limit [his] custodial rights.” He argues
the court’s finding that he was “certainly intoxicated when he was caring for [H.]” the
night he was arrested for DUI.
He cites the district attorney’s letter declining to file charges and records from the
Department of Motor Vehicles reinstating his driver’s license, asserting that they
“confirmed that [his] blood-alcohol content was below the legal limit … and that there
was insufficient evidence to support any criminal charges for DUI or child
endangerment.” He also argues that the court’s reverse extrapolation regarding Hess’s
blood alcohol content at the time he was driving was outside a lay factfinder’s
competence.
But even if these points were valid, Hess’s claim fails because he does not even
attempt to show prejudice. That is, he does not try to explain how there is a reasonable
probability of a different outcome but for these allegedly erroneous findings.
9. Denial of Mistrial Motion
Hess unsuccessfully moved for a mistrial on September 10. He based his motion
on grounds of admission of inadmissible evidence, ex parte communications that took
place without his knowledge, witness coercion, inability to effectively cross-examine a
witness, judicial bias, and scheduling trial dates too far apart. He contends the denial of
his motion was error. He fails to show prejudicial error.
A mistrial is the termination of a trial before completion, on order of the judge, for
error too serious to be corrected. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1249.)
A ruling on a mistrial motion is reviewed using the deferential abuse of discretion
standard of review. (Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th
766, 785.)
13.
Hess fails to carry his burden of showing a prejudicial abuse of discretion. He
baldly asserts without any supporting analysis: “The combination of repeated procedural
errors, ex parte communications, improper introduction of evidence, coercion of
witnesses, and unequal treatment created a trial environment in which a fair and impartial
decision could not be reached. Under Code of Civil Procedure § 1141.1, such
circumstances justify a mistrial to protect the integrity of the proceedings.” We observe
there is no section 1141.1 in the Code of Civil Procedure, and section 1141.11 is about
judicial arbitration, not mistrial motions. The lack of cogent argument supported by legal
analysis on the prejudicial effect of the denial of the mistrial motion is fatal to Hess’s
claim.
10. Scope of the Custody Evaluation
Hess asserts the trial court erred “by failing to properly establish the scope and
review period of the child custody evaluation.” He contends: “Under Family Code
§ 3110 and California Rules of Court, rule 5.220, a trial court must define the purpose
and scope of a custody evaluation to ensure the evaluator considers only relevant, timely,
and admissible evidence. An evaluator’s authority is limited to the court’s instructions;
failure to specify the evaluation period can result in overreach and the inclusion of
irrelevant or inadmissible information.” His claim lacks merit.
The trial court here issued an order appointing King to perform “a full child
custody evaluation under the statutory authority of Family Code section 3111 [and]
Evidence Code section 730.” The court stated the evaluation’s purpose and scope: “To
determine what custody and visitation plan is in the best interest of minor child, [H.].
Evaluate the history of the family relationships, assess the interactions between the minor
child, mother, father, and the paternal grandparent (seeking custody and visitation of the
minor child) Caroline Cruz, as well as the other family members that live with either
parent. Evaluate the mental fitness of both parents and consider the necessity of
14.
substance abuse evaluations. Consider available plan(s) of action for solutions and make
appropriate recommendations.”
Hess is simply incorrect that the court failed to set the purpose and scope of the
evaluation. He complains that the court did not set a specific time period for the
evaluation, contending that the evaluation should have been limited to matters occurring
after October 5, 2021, the date Bogolea filed for emergency custody. But he cites no
authority for the proposition that the trial court was required to set a specific period.
Since the court did not set that time period, King was allowed to consult evidence from
before October 5, 2021. We also observe that the court directed King to “[e]valuate the
history of the family relationships,” which would allow King to review evidence from
before October 5, 2021, since H. was born in 2013. In sum, the trial court properly set
the purpose and scope of the evaluation, and nothing shows that King exceeded the
scope.
11. Filing of the FL-326 Form
A person appointed a child custody evaluator must complete and file with the
court clerk’s office a “Declaration of Private Child Custody Evaluator Regarding
Qualifications” using form FL-326 before beginning work on the evaluation.
(Rule 5.225(l)(1)(B).) No FL-326 form was filed in this case, but King testified during
voir dire that she completed and filed the form the day after she was appointed. The
court believed King, finding that she “substantially complied” with her duty to file the
form but “[s]omehow it didn’t actually get filed.”
Hess maintains on appeal that King did not file a FL-326 form before beginning
work in this case. But in making this contention, he ignores the court’s finding that King
submitted the form for filing. By ignoring this finding, he supplies no reason why we
should not defer to it. (In re A.F. (2016) 3 Cal.App.5th 283, 289 [issues of fact and
credibility are questions for trial court, not appellate court].)
15.
Also, even if King failed to comply with her duty to file the FL-326 form, this
would be a procedural error, which would not require reversal unless it resulted in a
miscarriage of justice. Hess has not even attempted to show how this resulted in a
miscarriage of justice.
12. Piqui’s Law
Hess asserts the court’s order requiring that he complete ten family therapy
sessions with H. before having visits with H. outside the therapist’s office violates Piqui’s
Law. Piqui’s Law is codified in Family Code section 3193. (Stats. 2023, ch. 865, § 3,
eff. Jan. 1, 2024.) That statute provides: “(a) Notwithstanding any other law, a court
shall not order family reunification treatments, programs, or services, including, but not
limited to, camps, workshops, therapeutic vacations, or educational programs that, as a
condition of enrollment or participation, require or result in any of the following: [¶]
(1) A no-contact order. [¶] (2) An overnight, out-of-state, or multiday stay. [¶] (3) A
transfer of physical or legal custody of the child. [¶] (4) The use of private youth
transporters or private transportation agents engaged in the use of force, threat of force,
physical obstruction, acutely distressing circumstances, or circumstances that place the
safety of the child at risk. [¶] (5) The use of threats of physical force, undue coercion,
verbal abuse, isolation from the child's family, community, or other sources of support, or
other acutely distressing circumstances.” (Fam. Code, § 3193.)
Hess provides no developed argument for how therapy sessions with H. in a
therapist’s office are prohibited by this statute. He asserts that Piqui’s Law prohibits the
court from conditioning visitation on successful participation in therapy, but the text of
the statute does no such thing. To be sure, the statute bars certain types of therapeutic
treatments, but it certainly does not generally prohibit therapy as a condition of visitation.
We reject the claim.
16.
13. Denial of Recusal Motion
Hess unsuccessfully moved twice to recuse Judge Hallie Gorman Campbell. He
contends these denials were erroneous. We cannot review this claim in this appeal
because “[t]he determination of the question of the disqualification of a judge is not an
appealable order and may be reviewed only by a writ of mandate … filed and served
within 10 days after service of written notice of entry of the court’s order determining the
question of disqualification.” (Code Civ. Proc., § 170.3, subd. (d).)
14. Speculative Findings
Hess contends the trial court’s decision, taken as a whole, reflects the judge’s
personal opinions and speculation rather than record-grounded fact finding. He reprises
the blood alcohol content extrapolation argument from his eighth point and then extends
the same theory to a string of specific lines in the statement of decision: the court’s
characterization of Hess’s litigation conduct as “tactics,” its statement that his refusal to
sign a blanket therapy records release may “not be beneficial to [Hess],” its description of
his objections as resembling “conspiracies” or “attacks on authority,” its finding that a
video call in which Hess exceeded a time limit showed H. “having trouble with his father
respecting boundaries,” and an allegation that the court confused Hess’s stated wish to
change H.’s school with an unrelated custody matter involving a different child. Hess
frames each of these as either unsupported speculation or improper punishment of his
lawful exercise of procedural rights (motions to strike the evaluation, objections to
disclosure, cross-examination), rather than permissible credibility assessments or
characterizations a factfinder is entitled to draw from the evidence and the litigant’s own
conduct at trial.
Hess does not argue or demonstrate that any of these claimed errors were either
unsupported by the record or prejudicial. Specifically as to Hess stating he wished to
change H.’s school, this fact appears in King’s report. These claims therefore fail.
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15. No Change of Circumstances
Hess argues the trial court erred by removing all physical and legal custody of H.
from him “without clear and convincing evidence of harm or a substantial change in
circumstances.” This argument fails because the clear and convincing evidence standard
does not apply here.
“In an initial custody determination, the trial court has ‘the widest discretion to
choose a parenting plan that is in the best interest of the child.’ ” (In re Marriage of
Burgess (1996) 13 Cal.4th 25, 31–32.) When there is a final custody determination
already in place, a request to modify custody requires the trial court to apply the changed
circumstances rule, under which a party seeking to modify the permanent custody order
can do so only if they demonstrate “a significant change of circumstances” so affecting
the child that that modification is essential to the child’s welfare. (In re Marriage of
Brown & Yana (2006) 37 Cal.4th 947, 956; Montenegro v. Diaz (2001) 26 Cal.4th 249,
256.)
Hess leans on Santosky v. Kramer (1982) 455 U.S. 745 and similar cases to posit
that the trial court needed “clear and convincing evidence” to remove custody. But
Santosky and its line of cases govern the termination of parental rights in juvenile
dependency proceedings, which is an entirely different type of proceeding than what we
have here. (Id. at pp. 768–769 [holding that state may not completely and irrevocably
sever parental rights unless it supports its allegations by at least clear and convincing
evidence].) Hess is relying on the wrong standard, and he thus fails to demonstrate error
on this claim.
16. Witness Tampering
Hess contends Bologea’s counsel, Salkeld, tried to tamper with King as a witness,
and he contends the trial court erred in failing to address it. His claim is based on
Salkeld’s alleged ex parte communications with King about making a report to the
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sheriff’s office about King being intimidated as a witness. He reasserts largely the same
arguments he made in his fourth claim of error. The claim has no merit.
King failed to appear on the third day of the hearing in this matter, May 29, and
the court issued an order to show cause for her. King filed a declaration ahead of the
hearing on the order to show cause and explained that she was not personally served with
a subpoena to testify on May 29, and also that she was afraid to testify because someone
had been intimidating her. She said she knew Hess was a convicted felon who served
four years in prison for armed robbery, and she knew Hess and Cruz were associated with
a man named Nate Smith who is an activist for “father’s rights.” Cruz admitted to King
that Smith was advising them and that Smith was “an advocate against ‘corrupt family
court practices.’ ”
On April 30, Smith was in the courtroom with Hess and Cruz and he sat in the
gallery. Smith’s eyes “remained fixed on” King as she testified, which made her feel
intimidated. She testified that during a break in the proceedings, Hess walked by her in
the hallway and intentionally “brushed against” her, which she perceived as intimidation.
After the April 30 court date, King found negative reviews and defamatory statements
online about her from Smith. She stated she called the Tuolumne County Sheriff’s
Department to report Smith as she was afraid for her safety. Attached as an exhibit to
King’s declaration was an email from Salkeld to King about reporting the intimidation
King had been experiencing to the sheriff’s department.
Hess asserts, without any reasoned argument, that the communications between
King and Salkeld about King being intimidated “constitute improper witness influence
and meet the statutory definition of witness tampering. (Pen. Code, §§ 136.1,
subd. (a)(1), 137(b).)” He also baldly asserts these communications “sought to shape
[King’s] perceptions and testimony and compromised her role as a neutral expert.” As
we explained earlier, nothing in the record shows Salkeld was trying to improperly
influence or manipulate King. The record instead shows Salkeld’s intention with these
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cited communications was to help King feel safe coming to court to testify. Hess has not
shown reversible error on this point.
17. “Unauthorized Advocacy Constituting Reversible Error”
After the court discharged the order to show cause, the court allowed Emanuels to
remain at the hearing on King’s behalf. While Hess was cross-examining King,
Emanuels lodged objections. Hess contends the trial court committed reversible error by
allowing Emanuels to “remain in the courtroom” and “actively object” as Emanuels had
“no formal appearance or designation as counsel.” This is plainly wrong. Emanuels was
King’s counsel of record, and the court recognized him as her attorney. There was no
alleged “unauthorized advocacy.”
DISPOSITION
The trial court’s November 4, 2024, order is affirmed. Respondent shall recover
her costs on appeal.
SNAUFFER, J.
WE CONCUR:
DETJEN, Acting P. J.
MEEHAN, J.
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