Filed 4/12/17 R.C. v. P.C. CA4/3









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


R.C.,

Appellant,

v.

P.C.,

Respondent.


G053331

(Super. Ct. No. 12P001259)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Salvador Sarmiento, Judge. Affirmed.
R.C., in pro. per., for Appellant.
No appearance for Respondent.


In June 2016 we considered the issue of whether the family law court abused its discretion by denying R.C.’s (Father) petition for legal and physical custody of his son Michael C. (Michael). (R.C. v. P.C. (June 28, 2016, G051519) [nonpub. opn.] (R.C.).) In that appeal, Father complained the family law court ignored the fact his due process rights were violated when the court in 2013 gave Michael’s maternal grandmother, P.C. (Grandmother), sole legal and physical custody of the child as part of a domestic violence restraining order to keep Michael’s drug addicted mother, H.C. (Mother), safely away from them. (Ibid.) Father maintained it was unfair to be excluded from the proceedings that effectively terminated his parental rights. We concluded he was right because the court lacked jurisdiction to adjudicate custody in favor of a non-parent in the context of a domestic violence restraining order. (Ibid.) We also expressed dismay the Orange County Department of Social Services Agency (SSA) was alerted to Michael’s predicament as early as 2012 and did nothing. Because the prior void order did not mandate an automatic reversal, we reviewed the family law court’s custody order and concluded there was no abuse of discretion in awarding physical and legal custody to Grandmother and monitored visitation to Father. (Ibid.)
The current appeal concerns Father’s attempt to modify the custody and visitation order. We agree with the trial court’s determination Father did not meet his burden of proving a change in circumstances warranting a change in custody. We affirm the order.
I
A detailed factual and procedural summary is contained in our prior opinion and, rather than repeat it, we incorporate it here by reference. (R.C., supra, G051519.)
We pick up where we left off. On December 9, 2014, after holding a five day hearing, the family law court made several factual findings before issuing its custody order. It noted then three-year-old Michael had been comfortably residing with Grandmother since April 2013. Father and Grandmother both obtained restraining orders against Mother, who was volatile and aggressive. Father had not visited Michael for several months, and the court believed Grandmother had “assumed the role of parent” and provided for all of Michael’s needs. There was no evidence showing the parents assisted Grandmother in any fashion. The court awarded legal and physical custody to Grandmother, stating, “Based on the evidence, it is in the best interests of the minor to remain with [G]randmother and returning him to either parent would be detrimental to the minor. Court received no evidence to the contrary.”
The court awarded Father supervised visitation at F.A.C.E.S. It explained the reason visits initially would be supervised was because Father “showed he has a serious anger management problem,” and he and Mother continue to be involved “in what can only be describe[d] as a tumultuous and dangerous relationship.” It also commented Father admitted he smoked marijuana and Michael had “serious unexplained bruises” after visiting with Father. The court added that when Father completed a parenting education program and anger management class, visits would be supervised by Father’s parents on Saturdays and eventually for the entire weekend.
Approximately one year later, on December 11, 2015, Grandmother filed a request for an order (RFO) modifying Father’s visitation. In her supporting declaration, Grandmother explained that after Father completed a parenting education program and an anger management class, he began supervised visitations with Michael the first, third, and fifth Saturdays from 10 a.m. to 6 p.m. The paternal grandparents supervised these visits. After three months, Father’s visitation time was increased to the first, third, and fifth weekends from 10 a.m. Saturday until 6 p.m. Sunday. Grandmother declared Mother had no visitation with Michael over the past year.
Grandmother explained the primary reason for filing the RFO was that Michael no longer wanted to visit with Father and the current visitation schedule was causing harm. Grandmother stated she tried to encourage Michael to visit Father and facilitate peaceful exchanges. She described several incidents where Father was angry, verbally abusive, and confrontational during visitation exchanges.
Grandmother discussed several issues and concerns in the RFO. Specifically, she was not confident the paternal grandparents were supervising visits. Grandmother conveyed several disturbing stories she had heard from third parties about the lack of supervision and Michael’s distress from being left alone outside. Grandmother noted the court gave her authority to stop visits if she believed there was inadequate supervision and she believed it was time to find a professional to supervise visits.
Grandmother reported she learned from Michael that Father drove with him in the front seat of his car. Grandmother knew Father had a suspended driver’s license. She observed Michael would sometimes urinate and defecate outside the house, and she believed this was due to stress during exchanges.
Grandmother described how Michael felt about spending time with Father. After one visit, Michael told Grandmother that Father was a liar and he was different. Michael communicated he was scared to go inside the paternal grandparents’ home because there were always lots of people there “partying.” After visits, Michael appeared angry and frustrated and he would cry. He told Grandmother he loved his home and he did not want to “‘go to dad’s house.’” Grandmother stated Michael was experiencing nightmares since visiting Father. Michael would get up in the middle of the night and find Grandmother. Michael now called Grandmother “mom” and he cried after Father forbid him from referring to her by that name in front of him.
Grandmother also discussed Father’s “inappropriate conduct” in front of Michael. Specifically, Father liked to wear adult-themed clothing that Grandmother believed Michael should not see. Grandmother found particularly distasteful a t-shirt depicting two naked women kissing, with one women touching the other woman’s chest. In addition, Grandmother believed Father was struggling with anger management issues. During a recent visitation exchange, on October 3, 2015, Father became angry and verbally abusive when she told him that Michael did not want to visit.
Grandmother believed Father was no longer living with his parents but in a trailer “with a [p]itbull” and Mother. She learned Father’s brother and sister-in-law moved into Father’s room at the paternal grandparents’ residence. Grandmother suspected Father was having contact with Mother and that perhaps they resumed a romantic relationship. Grandmother saw Mother and Father whispering after a visit with Michael in August 2015. Michael recalled Father said he was helping Mother go to a rehabilitation center and F.A.C.E.S. Grandmother concluded it was not safe for Michael to be around Mother.
Grandmother recounted a violent incident occurring between Mother and Father in front of her house on October 17, 2015. She recalled Father arrived with paternal grandfather and his two older children. Father, holding a camera in his hand, indicated to Michael it was time to go. When Michael refused, Grandmother saw Father speak to someone. She moved closer and saw it was Mother. She saw Mother and Father begin arguing and Mother hitting Father while he kept recording. Father looked at Grandmother and said it was not good she had Mother at her house. Grandmother and Michael went inside the house and called the police. Grandmother stated she did not know Mother was at her home, and she would have called the police earlier if she had seen Mother.
Based on all of the above information, Grandmother requested the visitation order be modified to give Father two hours on alternating Saturdays with no overnights because Michael was struggling with the current visitation schedule. In addition, she requested visits be supervised by a professional service, such as F.A.C.E.S. Grandmother also requested an order that Father wear more suitable clothing, drive only with a valid license, and secure Michael with car-appropriate child safety restraints. She claimed to have asked Father to participate in mediation to resolve their issues, and he refused.
Three days later, Father filed a RFO representing himself in propria persona, seeking full legal and physical custody. The primary basis for custody modification was evidence Grandmother was allowing Mother to stay on her property and have contact with Michael. Father maintained Grandmother’s restraining order was simply “a leverage mechanism over our son.” Father stated Mother was a dangerous drug addict and her presence at Grandmother’s house posed a risk of harm to Michael and himself. To prove Grandmother permitted Mother to violate the restraining order, Father attached a copy of the police report generated after the October 17, 2015, incident occurring in Grandmother’s front yard. Paternal grandfather submitted a declaration confirming Father’s account of what happened that day. Paternal grandfather recalled Mother came “around the side of parked cars in the driveway” to assault Father.
Father prepared a declaration stating he completed the required parenting class in February 2015and anger management class in May 2015. Father accused Grandmother of alienating Michael from him. He noted Michael was calling her “mom” and she refused to facilitate visits. He argued, “It is apparent that [Grandmother] has convinced herself that she is Michael’s mother. This unnatural connection is damaging to my son and this behavior should not be allowed to continue.” He concluded the custody award was supposed to only be a temporary measure to allow Father to “be rehabilitated to the Family Code standard.” Father believed Grandmother was legally maneuvering to eventually adopt Michael. Her actions “failed Michael by not allowing the natural maternal and paternal bonds” to re-establish.
Father added Grandmother was “knit-picking what I wear” and overstepped her position as Michael’s caregiver “by making an issue of my dress.” Father questioned the relevance of his clothing and accused Grandmother of “tramping on my constitutional rights of freedom of expression to take issue with my T-shirts.”
Father clarified his relationship with Mother was amicable but not close. He attested to being in a “dedicated relationship” with his girlfriend for over one year. After Mother served a short prison sentence, Father encouraged her to seek drug treatment because he believed this would be in Michael’s best interests. Father stated he never told Michael he planned to pick up Mother. He also denied Grandmother’s accusation Michael was left unsupervised during visits. He claimed she was “outright lying” to the court and had no evidence to support her allegations.
With respect to Grandmother’s assertion Michael thought Father was a liar and was acting differently, Father submitted the F.A.C.E.S. visitation log. He stated the entries showed that from August 8, 2014, to May 15, 2015, Father had 31 visits, totaling 62 hours with his son (this total reflects one to two hour visits took place approximately four times a month for this nine-month period). The records documented that during those visits Michael consistently hugged Father and verbally expressed his love for Father. Father blamed Grandmother’s “interference” for creating Michael’s more recent negative feelings towards Father.
In his declaration, Father described his version of the October 17, 2015, incident. He explained the video footage clearly disproved Grandmother’s claim to have called the police that day. He questioned why Mother was there, and how she got there. He noted one basis of the restraining order was Mother’s habit of “squatting” on the property to ingest drugs, and using the driveway as her personal toilet. For this reason, Father argued Grandmother’s claim she did not know Mother was outside was unbelievable.
At the hearing on March 9, 2016, Father testified he figured out why Michael was crying at visits. Michael revealed Grandmother told him Father was going “to steal” him. When the court asked Father if he had visited Michael since October 2015, Father replied, “they have not let me have contact. I have police reports. I went over there. I made a police report. They refuse to let me have any kind of contact with my son. They put negative things in his head.”
Father asked the court to review the F.A.C.E.S. reports. He explained that in 32 visits there was something in each report noting Michael said he saw or spent time with Mother. The report also showed Grandmother told Michael that Father was a thief and said other bad things about him. Father argued Michael was loving and happy to see him until Grandmother started saying negative things. Father requested the court order a section 730 custody evaluation.
Next, Father directed the court’s attention to his home video of the October 2015 incident and photographs showing Mother hugging Michael. He concluded these items provided proof Mother was permitted contact with Michael at Grandmother’s house.
Grandmother’s counsel reminded the court the reason Grandmother was given custody was because of previous violent altercations between Mother and Father. Counsel believed the October 2015 incident was a ruse. The police report stated Father refused to press charges against Mother for the assault. When the police officer asked for the videotape, Father declined the request, explaining he might need it for a future custody hearing. Counsel opined the entire incident was “to drum up some reason” that Grandmother should not be caring for Michael. Counsel stated Grandmother played no role in the altercation and was not permitting contact between Michael and Mother. Counsel added, Father had not seen or telephoned Michael since October 17, 2015.
Father replied by arguing the last scheduled visit was on September 19, 2015. Grandmother called Father and said Michael was not going to come because he was sick. Father stated he would take care of Michael. Grandmother said no and hung up the telephone. Father claimed he had written letters to Grandmother, asking she comply with the court ordered visitation schedule. Father stated his many telephone calls were all unanswered. Father asserted the October 2015 incident was not a set up. He bought the camera because every time he picked up Michael he would see Mother at the house or at the end of the block. He asked paternal grandfather to hold the camera when Michael would not come out of the house. Father then saw Mother, with blood dripping down her neck presumably from a drug injection, saying Michael did not want to go on his visit.
The court interrupted Father’s discussion of the October 2015 incident. The court informed Father it was his burden to show a significant change of circumstances had occurred since the custody order was imposed in December 2014. The court stated the ruling had to be based on evidence and Father did not have anything to corroborate his claims. The court denied Father’s request to modify the custody order. Turning to Grandmother’s request, the court acknowledged it gave Grandmother authority to restrict visitation as “she has seen best fit.” The court agreed with Grandmother’s request that future visitation include a therapeutic monitor, meaning a counselor would be present during Father’s visits at F.A.C.E.S. In addition, the court ordered Father to wear appropriate clothing and use proper language during visits.
II
“Ordinarily, after a judicial custody determination, the noncustodial parent seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child’s welfare. [Citation.] As we have explained: ‘The [changed circumstance] rule requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child. The court can then inquire whether alleged new circumstances represent a significant change from preexisting circumstances, requiring reevaluation of the child’s custody.’ [Citation.]” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 37.)
“It is settled that to justify ordering a change in custody there must generally be a persuasive showing of changed circumstances affecting the child. [Citation.] And that change must be substantial: a child will not be removed from the prior custody of one parent and given to the other ‘unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change.’ [Citation.] The reasons for the rule are clear: ‘It is well established that the courts are reluctant to order a change of custody and will not do so except for imperative reasons; that it is desirable that there be an end of litigation and undesirable to change the child’s established mode of living.’” (In re Marriage of Carney (1979) 24 Cal.3d 725, 730-731.) “[T]he burden of showing a sufficient change in circumstances is on the party seeking the change of custody.” (Id. at p. 731.)
Father’s burden below and on appeal was not lessened because of his status as a party appearing in propria persona. Our high court has made clear that, “mere self-representation is not a ground for exceptionally lenient treatment.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) On the other hand, whenever possible, we do not strictly apply technical rules of procedure in a manner that deprives litigants of a hearing. (Cf. Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 432 [“we carefully examine a trial court order finally resolving a lawsuit without permitting the case to proceed to a trial on the merits”].) Although the opening brief contains very few record references, and minimal legal analysis, we have done our best to decipher and address Father’s claim on appeal.
Father does not assert the court erred in finding he failed to meet his burden of showing a change of circumstances. Instead, Father argues he complied with every request and order of the superior court, but Mother did not. But this is not the test we use to review the court’s refusal to change a custody order. Father had the burden of showing a sufficient change in preexisting circumstances.
Father makes several allegations that essentially attack Grandmother’s parenting skills, but none of his contentions make us question whether the court abused its discretion ruling on the custody matter. Father’s belief Grandmother’s restraining order was evidence of a conspiracy to deprive him of contact with Michael was addressed in the prior appeal. The restraining order was neither a new nor changed circumstance. Similarly, Father’s allegations Grandmother was a drug user and made poor parenting decisions were issues raised during the five-day custody hearing in 2013. These stale allegations are not evidence of changed circumstances, and we have no reason to question the prior credibility findings in favor of Grandmother.
Father fails to appreciate the preexisting conditions supporting the initial custody award was Father’s anger management problems, his volatile relationship with Mother, and his lack of contact with Michael. None of these circumstances have changed. Father did not present evidence to refute Grandmother’s claim visitation exchanges were volatile due to Father’s angry outbursts. Father produced his own videotape documenting a violent incident between himself and Mother that took place in front of Michael. This record suggests Father still struggles with anger management issues despite the classes he completed.
As for visitation, the record shows there was a change of circumstances, but the new status does not assist Father. Approximately15 months have passed since the custody order. During the first five months (December 2014 to May 2015), the record shows Father consistently visited Michael at F.A.C.E.S., and their interaction was positive. However, the logs reflect the amount of visitation was minimal (approximately once a week). Thereafter, Father’s visitation time substantially increased to weekends from May through October 2015. We note, during this five-month period Father presented no evidence (such as testimony or declarations) from the visitation supervisors, who were his parents, regarding the nature of those visits. Paternal grandfather’s declaration referred only the October 17, 2015, altercation with Mother. The only information regarding the nature of Father’s visits during this time period was found in Grandmother’s declaration, reporting second hand information. Michael stated several reasons why he wanted to spend less time with Father and why he disliked staying with his paternal grandparents. Grandmother suspected visits were not being adequately supervised placing Michael at risk of harm. Finally, there is no dispute that in the five months leading up to the March 2016 hearing Father had absolutely no contact with Michael. Father’s interactions with Michael had deteriorated and decreased, rather than changing for the better, since the initial custody order.
Finally, we turn to Father’s contention he should be given custody of Michael based on evidence Grandmother was allowing Michael to have contact with Mother. When making its ruling, the court stated Father failed to meet his burden of showing a significant change of circumstances and Father failed to present evidence to corroborate his claims. We agree. Father’s video documented one occasion in 15 months where Mother was seen outside Grandmother’s residence. Moreover, information in the police report raised the inference the encounter was staged to create some evidentiary support for Father’s motion. We find no reason to disturb the court’s credibility assessment, believing Grandmother’s version of the event. And, in any event, evidence of a single incident is insufficient proof there are changed circumstances warranting a change of custody.
After carefully reviewing the record, we conclude the court did not abuse its discretion in refusing to modify the custody order. Father failed to establish Grandmother was no longer a suitable caregiver. Michael referred to her as “mom,” and by all accounts they had a loving and caring relationship. Father also failed to address the preexisting conditions that supported the court’s initial determination parental custody would be detrimental to Michael. There was no change of circumstance regarding Father’s anger management issues, his questionable parenting skills, or his long absences from Michael’s life.


III
The order is affirmed. Because respondent did not make an appearance, no costs are awarded.



O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.