Filed 12/12/18 Marriage of Randi W. & Thomas C. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mickie E. Reed, Judge. Affirmed.

Randi W., in pro. per., for Appellant.

No appearance for Respondent.

I.

INTRODUCTION

Appellant, Randi W. (mother), appeals in propria persona from a judgment^[1] granting her former husband, respondent, Thomas C. (father), sole legal and physical custody of their son, H.C., and their daughter, Z.C. Mother contends that the trial court’s order was not in the children’s best interests. Mother also contends that the trial court relied on “false hearsay,” as well as inconsistent and biased information in the Evidence Code section 730 evaluation report (730 evaluation), which purportedly failed to comply with Family Code section 3118^[2] and California Rules of Court, rule 5.220.^[3] Mother further contends that the trial court violated Family Code section 3027.5, subdivision (a), by denying her custody of the children without finding under Family Code section 3027.5, subdivision (b), that mother knowingly made false allegations of child sexual abuse against father, with the intent to interfere with his lawful contact with the children. Additionally, mother challenges activities incidental to the lower court proceedings, such as the court-ordered mediation with father and the conduct of minors’ counsel. Father has not filed a respondent’s brief.

We find no abuse of discretion in the trial court’s order granting sole legal and physical custody of the children to father. We therefore reject mother’s contentions and affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

H.C. was born to mother and father in June 2008. In October 2009, mother and father married. Their daughter Z.C. was born in November 2010. After mother and father separated in early 2011, mother and her new boyfriend had two boys, I.F., born in April 2012, and K.F., born in August 2015.

Mother filed two dissolution actions, the first on September 12, 2011, in Riverside County Superior Court case No. IND1101604, and the second on June 11, 2015, in Riverside County Superior Court case No. IND1501064. Mother filed the second action even though she and father already had active custody and visitation orders dating back to 2011 in the first case. In the second action, mother requested permission to relocate with H.C. and Z.C. to San Diego or San Francisco, along with mother’s boyfriend and their two children. On September 9, 2015, mother filed a request for order for modification seeking consolidation of her two marital dissolution actions, modification of the existing custody and visitation orders, and issuance of a move-away order to the San Francisco Bay Area.

On or about September 28, 2015, mother witnessed Z.C. attempting to have the family dog lick her vagina. Z.C. told mother that father had shown her how to do it. After speaking with H.C., mother concluded that father had sexually abused the children.

Mother reported her concerns to the police and to child protective services (CPS). On September 30, 2015, mother filed a request for a domestic violence restraining order and a temporary restraining order against father. The temporary restraining order was granted that same day, and a permanent domestic violence restraining order hearing was set for October 22, 2015.

On October 5, 2015, a Riverside Child Assessment Team (RCAT) interview of Z.C. was conducted. Z.C. was examined by CPS child forensic interviewer Denise Bowman, while CPS social worker Phyllis Dumas observed the examination from an adjoining room. Dumas reported that Z.C. showed no signs of trauma during the RCAT interview. While she thought some of Z.C.’s disclosures were credible, Dumas considered other disclosures to be fantasy.

On October 14, 2015, the Riverside County Department of Public Social Services received another sexual abuse referral from mother concerning H.C. and Z.C. The referral alleged that father had rubbed H.C.’s private parts and posted a naked picture of Z.C. on Facebook. On October 21, 2015, father permitted law enforcement officers to thoroughly search his home, vehicles, and electronic devices. The officers found no evidence of pornography, inappropriate materials, or anything of concern. On October 22, 2015, the day of the domestic violence restraining order hearing, Riverside County Department of Public Social Services received yet another sexual abuse referral from mother. The referral alleged father had put his penis in Z.C.’s mouth and urinated, while father’s girlfriend held Z.C.’s head.

At the outset of the October 22, 2015, hearing, the trial court found that the proceedings did not involve domestic violence. The court denied the domestic violence restraining order without prejudice and consolidated the two dissolution actions. The court also ordered the case to mediation, and set November 17, 2015, for a further hearing on the custody and visitation issues raised by mother. The court denied father visitation until the November 17, 2015, hearing.

On October 27, 2015, Z.C. was administered a medical child abuse and neglect examination. The examination results appeared normal and yielded no evidence of sexual abuse.

In early November 2015, mother moved to Yucca Valley and enrolled H.C. and Z.C. in a nearby school, but she later removed them in favor of home schooling. Mother and father met separately with the mediator, who reported an assessment of the case in a memorandum filed with the trial court on November 12, 2015. The mediator reported that the referrals of September and October 2015 were determined to be “inconclusive.” The mediator concluded that the submitted information raised “significant questions about mother’s credibility.” The mediator also stated that the children’s allegations were the result of a combination of factors, which included mother coaching them and removing the children “from their regular school setting to isolate them and possibly better control their stories.”

On November 17, 2015, the trial court indicated it had reviewed the memorandum and then heard argument from both parties regarding mother’s child sex abuse allegations. The court expressed its concern that the children were at risk with both father and mother. To address its concern, the court appointed the children’s paternal grandmother as the children’s temporary “non-professional supervisor.”^[4] The court also ordered Riverside County Department of Public Social Services to file a section 3027 report (3027 report). In addition, at mother’s request, the court ordered a 730 evaluation and appointed Diana Herrington, a marriage family therapist, as the evaluator. The court further ordered that H.C. and Z.C. be enrolled in school and established a supervised visitation schedule for mother and father.

The 3027 report, dated February 2, 2016, summarized the findings of the various experts. The reporting CPS investigator characterized Z.C.’s RCAT interview as consisting of “imaginative and fantasy type” sexual abuse allegations. The CPS investigator noted that Z.C.’s therapist, Dr. Barbara Smith, reported Z.C. describing the taste of father’s urine in her mouth as like sweet lemonade. The CPS investigator also noted that Z.C. later recanted her sexual abuse allegations. The CPS investigator concluded there was no evidence father had sexually abused either of his children.

In April 2016, Herrington submitted her 730 evaluation report, after interviewing the parties, the children, and the social services professionals involved in the case. She summarized the sexual abuse allegations against father as touching Z.C.’s private parts, putting his private parts on her face, masturbating in front of H.C., shaving Z.C.’s buttocks and thus making them bleed, and urinating in Z.C.’s mouth. Herrington reported that Dumas repeatedly asked mother not to discuss any sexual abuse allegations with Z.C., but discovered that mother nonetheless continued to do so. Dumas characterized mother as “‘desperate to convince [her]. She really wanted to move.’” Herrington reported that Z.C.’s therapist, Dr. Smith, did not believe Z.C. had been sexually molested. Dr. Smith relied on the fact that Z.C. never demonstrated fear of father, Z.C. was inconsistent in her sexual abuse allegations, Z.C. would create sexual abuse narratives that incorporated characters and objects suggested by her immediate environment, and Z.C. ultimately recanted her stories, admitting that no one had touched her. Herrington also noted that H.Z.’s therapist, Maria La Rosa, observed that H.C. “had to tell [her] a story every week,” as if story telling were “a job for him while he was staying with Mother.” La Rosa stated, “This is too much for [H.C.]. He can’t keep going through this. I’m afraid mom isn’t going to stop.”

Based in part on these interviews, Herrington concluded, “There is no evidence to support that the children are in danger at Father’s residence. There is evidence to support that Mother’s initial reporting of abuse may have been protective gatekeeping, but the gatekeeping moved into restrictive gatekeeping. It is not known if [Z.C.] and [H.C.] initiated the original and subsequent sexual abuse allegations or if Mother initiated the allegations. It is supported through collateral contacts that Mother used poor judgment in her handling of the children during the investigation.” Herrington recommended that mother and father be awarded joint legal and joint physical custody, but that primary custody be awarded to father.

Upon mother’s request, the trial court bifurcated marital status and entered the dissolution judgment on June 22, 2016. The court conducted a bench trial of the remaining issues. The following witnesses testified: (1) Denise Bowman, CPS child forensic interviewer; (2) mother; (3) mother’s Evidence Code section 733 expert, Dr. Thomas P. Howell; (4) father; and (5) Diana Herrington, the 730 evaluator. The court received the 730 evaluation report into evidence, and heard closing arguments on September 14, 2016. The court issued its statement of decision on October 21, 2016, and rendered its final decision on the same day by minute order.

Based on its review of the 3027 report, the 730 evaluation report, and the witness testimony, the court found that father did not sexually abuse H.C. and Z.C., and that mother “‘coached’ or created an environment for false allegations to occur, to the great detriment of the children.” The court awarded father sole legal and physical custody of the children. The court awarded mother unsupervised visitation, but restricted to each Wednesday after school; to the first, third, and fourth weekends of each month; to alternate weeks during the summer; to portions of the holidays; and to the children’s birthdays that fall within mother’s regular visitation periods. The court entered its judgment on March 22, 2017.

III.

DISCUSSION

As noted, mother makes a handful of contentions on appeal regarding the best interests of the children, the 730 evaluation report, and activities incidental to the lower court proceedings. We nonetheless deem mother’s overall contention to be that the trial court abused its discretion in awarding father sole legal and physical custody of the children, while awarding her unsupervised, but restricted visitation.

In child custody and visitation determinations, the overarching concern is the best interest of the child. (Montenegro v. Diaz, (2001) 26 Cal.4th 249, 255.) When determining the best interest of the child, factors the court must consider include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, the nature and amount of contact with the parents, and the habitual or continual illegal use of controlled substances. (§ 3011; Montenegro, supra, at p. 255.) The court must also consider “which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent . . . .” (§ 3040, subd. (a)(1).) The court and the family have the widest discretion in choosing a parenting plan that is in the best interest of the child. (§ 3040, subd. (c).)

We thus review custody and visitation orders under the deferential abuse of discretion test. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.) The test is not whether we would have made the same order or whether the trial court could have reasonably made some other order, but “whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) We do not reweigh conflicting evidence or redecide findings. (In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513.) We must affirm the trial court judgment if correct on any basis, regardless of whether that basis was invoked. (Montenegro, supra, at p. 255.)

Here, we conclude the trial court did not abuse its discretion by awarding father sole legal and physical custody of the children. The court had evidence that mother’s conduct adversely affected the health and welfare of the children. The court had no evidence that father sexually abused the children or that use of controlled substances was a genuine issue. Moreover, the court had ample evidence that father was the parent most likely to allow the children frequent and continuing contact with mother, but not vice versa.

The court based its custody and visitation orders in part on the opinions of the experts cited in the 730 evaluation report. They concluded that mother’s unrelenting interrogation of her children regarding sexual abuse disclosures either negatively impacted the children’s relationship with their father or was detrimental to the children’s emotional well-being. The 730 evaluation report also contained the children’s direct statements to Herrington. The children told Herrington that they had spoken with mother about the court proceedings and their alleged sexual molestation by father. H.C. told Herrington, “‘My mom said she knew it was sad I had to go to dad’s. We moved to Yucca to get away from dad. I’m just afraid now because I know the Court is going to do something. My mom goes to Court every Thursday. She said the Court said we are lying so we might get taken away.’” H.C. also told Herrington, “‘I know my dad didn’t do it. Now I think someone is trying to trick me. Now I know he isn’t lying because the machine said no. The Court thinks I lied. My mom says to tell them someone tried to trick me. I think someone dressed up like my dad.” Most telling was Z.C.’s statement to Herrington that, “‘I talked with mommy. We talked about [father] doing bad stuff. Mommy thought he was doing bad stuff. I told her no. Nobody has hurt me.’”

The trial court also based its custody and visitation orders on the conclusion of the 3027 report. The 3027 report concluded there was no evidence father had sexually abused either of his children as mother alleged. Father’s alleged sexual abuse of his children was supported only by mother’s unsubstantiated belief that father was predisposed to sexually abuse their children. Mother testified father had admitted that, when he was 12 years old, he had engaged in some sort of sexually suggestive behavior with a three-year-old cousin. Father acknowledged at trial that an incident had occurred when he was 12 years old, but father and mother both denied that he had sex with his cousin, thus calling into question even the genuineness of mother’s belief.

The evidence also did not support mother’s allegation that father abused alcohol or controlled substances. The only evidence of this was a drug test father took in 2011 that came back positive for alcohol. Nothing else in the record suggested that habitual or continual use of alcohol was a relevant concern in determining the children’s best interest. Moreover, all the evidence in the record suggested that father was the parent most likely to allow the children frequent and continuing contact with mother. (§§ 3020, 3040, subd. (a)(1).)

Based on this evidence, the trial court could have reasonably found that father did not sexually abuse H.C. and Z.C. It could have also reasonably found that mother coached H.C. and Z.C. to falsely allege sexual abuse against father. Additionally, the court could have reasonably found that H.C. and Z.C. were harmed by mother’s coaching and by her adamant refusal to accept that father had not sexually molested the children. Based on these reasonable findings, the court could have reasonably concluded that it was in the children’s best interest to award father sole legal and physical custody and to restrict mother’s unsupervised visitation.

Mother maintains that the 730 evaluation report and the 3027 report contain contradictory findings. The reports find that father did not sexually abuse the children, but they do not categorically rule out the possibility of sexual abuse. This argument is, however, unavailing because we do not reweigh conflicting evidence on appeal. (In re Marriage of Birnbaum, supra, 211 Cal.App.3d at p. 1513.) Furthermore, the inability of the experts to categorically rule out sexual abuse does not contradict their conclusion that father did not sexually abuse the children.

Mother also argues the 730 evaluation report is inadmissible under Family Code section 3118 and rule 5.220. Mother maintains that Herrington relied on the 3027 report instead of directly reviewing the CPS file, the police file, Z.C.’s forensic interview, or Z.C.’s medical examination results. Mother faults Herrington for basing the 730 evaluation report on an incorrect timeline of mother’s and father’s unsupervised visits of the children. According to mother, Herrington failed to address expert testimony that found her credible and her concerns legitimate, but Herrington chose to include testimony from grandmother while declining to interview mother’s witnesses.

This argument is unavailing as well. Noncompliance with Family Code section 3118 and rule 5.220 goes to the weight of the evidence, not the admissibility of the report. (In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 646, 653.) Assessing the evidentiary weight of the 730 evaluation report was within the trial court’s purview, and “we do not second-guess such evidentiary assessments.” (Id., at p. 653.)

Mother further contends that the trial court erred by violating section 3027.5. Section 3027.5 prohibits any limitation on a parent’s custody or visitation based on a parent lawfully reporting child sexual abuse. Mother argues that the trial court violated section 3027.5 by denying her legal and physical custody of the children without finding that she knowingly made false allegations of child sexual abuse, with the intent to interfere with father’s lawful contact with the children. (§ 3027.5, subd. (b).) According to mother, the court did not and could not have reasonably concluded that her allegations of the children’s sexual abuse by father were knowingly false and made in bad faith.

We reject mother’s assertion that the trial court violated section 3027.5. Section 3027.5 restricts a court’s authority to address false reports of sexual abuse by requiring that the court impose limitations on custody or visitation only after determining that limitations are necessary to protect the health, safety, and welfare of the child and to assure the child frequent and continuing contact with both parents. (§ 3027.5, subd. (b).) Thus, if a court determines that limitations on custody or visitation are necessary, imposing them does not violate section 3027.5, regardless of whether reports of child sexual abuse are determined to be knowingly false and made in bad faith. The trial court in this case reasonably determined that awarding father sole legal and physical custody was in the children’s best interest because mother’s reports of child sexual abuse were repeatedly refuted by the findings of Z.C.’s RCAT interview, the search of father’s home, Z.C.’s medical child abuse and neglect examination, the mediation memorandum, the 3027 report, and the 730 evaluation report. The trial court thus reasonably determined that awarding father sole legal and physical custody was necessary to protect the health, safety, and welfare of the children and to assure the children had frequent and continuing contact with both parents. We therefore conclude the court did not violate section 3027.5 by denying mother legal and physical custody of her children.

IV.

DISPOSITION

The judgment is affirmed. Mother shall bear her own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.