Filed 11/5/18 Marriage of E.M and J.M. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

E.M. (mother) appeals in pro. per. from a permanent order awarding full custody of her two minor children to J.M. (father). (See Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377–1378 [permanent custody order appealable].) She contends: (1) the court should have admitted a transcript of several witnesses’ prior testimony under Evidence Code section 1291; (2) the court should have disqualified itself under Code of Civil Procedure section 170.6 and its remarks show it was biased against her; (3) the proceedings were prejudiced by the misstatements of opposing counsel; (4) the court erred in allowing a detective to testify without qualifying as an expert; (5) there was no evidence that circumstances had changed or which supported a change in custody; and (6) the court should have issued a statement of decision under Code of Civil Procedure section 632. We affirm.

I. BACKGROUND

Mother married father in 2008 and the couple had two children, a daughter born in 2009 and a son born in 2012. Mother filed a petition for dissolution of the marriage in 2014, and in 2015, the couple entered into a marital settlement agreement calling for joint custody on a 50/50 basis.

Father began a new romantic relationship that has since ended. The woman father was dating had young children of her own and observed that father and his children were very attached. She never observed behavior on father’s part that was angry or inappropriate. There were difficulties exchanging the children and mother cancelled daughter’s birthday party after learning the new girlfriend was attending.

In January 2016, mother suspected that father had engaged in physical and sexual abuse of the children and sought a restraining order against him. She alleged sexualized behavior on the part of both children and reported the suspected abuse to both the Eureka Police Department and the Humboldt County Department of Health and Human Services (child welfare services). The court issued a temporary order requiring mother to comply with the existing custody arrangement pending a hearing. Father filed a response to mother’s request for a restraining order and a request for an order regarding custody and visitation, in which he requested that he and mother continue to share custody but that if mother refused to share the children, father be awarded sole custody.

In February 2016, the parties advised the court that a child welfare services investigation remained pending and they had reached a temporary agreement on visitation, providing that father would have unsupervised visitation for specified periods. Separate counsel was appointed for the minors. Father submitted to a polygraph test and denied touching his son’s penis or his daughter’s vagina for sexual stimulation and was found by the examiner to be truthful.

In March 2016, child welfare services completed its investigation into the allegations and recommended that the referrals be closed as unfounded. Father filed a declaration and requested a resumption of the shared custody arrangement or sole physical custody if mother persisted in her position that the children had been abused. The maternal grandmother took daughter to the hospital for an examination of vaginal injuries in March 2016, which daughter claimed had happened from hitting a bar on a bicycle during a ride with father and her brother. The referral was investigated by child welfare services and the police and ultimately declared unfounded. This was based in part on a Child Assault Services Team (CAST) interview, in which child welfare services, the district attorney’s office and the police were all involved. Although the daughter had suffered from redness in the vaginal area, she did not report abuse and her injuries could have been sustained in a bicycle accident in which she fell on the bar.

In April 2016, the investigating detective sent a memorandum to father stating, “I have concluded my investigation into the allegations of sexual assault by you, onto your 6 year old daughter []. Based on a thorough investigation that included historical research, medical records, a forensic sexual assault exam and a forensic interview of [daughter], I have concluded the allegation is unfounded. My investigation, case 16-001678, showed a pattern of unfounded reports by [daughter]’s mother and grandmother beginning in January of 2016. At no time in any of the many reports generated by [mother] and [maternal grandmother], has [daughter] ever alleged sexual assault.” Child welfare services sent a memorandum to both parents in April 2016 stating that the sexual abuse allegations had been deemed “unfounded” and that daughter had never disclosed such abuse. The memorandum continued, “It should be noted that custody disputes and continued vaginal exams, can lead to emotional abuse in itself. Child custody disputes and exams can cause anxiety and other such concerns for a child. It is important that we protect our children from abuse or neglect, but it is also important that we do not cause more concern for the child because of custody disputes.” Also in April 2016, the court order supervised visitation with daughter and set a hearing.

In October 2016, custody of the son was returned to father on a 50/50 basis and daughter’s supervised visitation with father was left in place. Child welfare services sent a memorandum to father indicating its investigation of sexual abuse had been completed and the allegation was determined unfounded. In December 2016, the visitation supervisor wrote a memorandum in which she described many positive visits and related that there “is no evidence of discomfort of time with their dad. The children show no signs of withdraw[al], anxiety or fear. As stated above, the kids exhibit a desire to be with [father]. [¶] Over the past year time with the kids has increased, and [son]’s time is no longer supervised. I’ve noticed that as this occurred the relationship has normalized, in that the kids, particularly [son], seem to have adjusted to the routine of being with their dad in a way that appears very healthy for all three of them.”

In January 2017, the court restored the parties to their 50/50 custody arrangement with father’s contact unsupervised. A hearing on custody and visitation commenced in June 2017. The court refused mother’s request (made while representing herself in the trial court, counsel having withdrawn) that prior transcripts be accepted in lieu of live testimony. It also denied her request for a continuance, noting that the matter had been pending for a year and a half, and rejected her motion to disqualify the judge under Code of Civil Procedure section 170.6 as untimely.

At the hearing, the court heard from several witnesses, including the parties themselves, the detective who investigated the abuse allegations, the visitation supervisor, father’s ex-girlfriend, friends of father who had seen him with the children, the maternal grandmother, and the nurse practitioner who examined the daughter in March 2016. Mother maintained that father had molested the children, while father argued that she was wrong and that her belief system was itself damaging to the children.

The court awarded full custody to father with supervised visits by mother. It prefaced its ruling by noting that the situation had “shades and similarities” to Munchausen’s syndrome by proxy[1] because everyone to investigate the abuse says it did not happen yet mother would not let go of the idea. In its findings and order after hearing, the court addressed four questions raised by father during closing argument: “1. Respondent/Father [] did not abuse either of the parties’ children in any manner. [¶] 2. Respondent did not perpetrate any acts of domestic violence upon Petitioner/Mother or the minor children. [¶] 3. Petitioner/Mother did not prove a significant change of circumstances to support a modification of custody to award her sole custody of the children. [¶] 4. Petitioner did not make false allegations of child abuse which she knew to be false at the time made.”[2]

II. DISCUSSION

A. General Comments

An appellant has the burden not only to show error but prejudice from that error. (Cal. Const., art. VI, § 13.) If an appellant fails to satisfy that burden, her argument will be rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) It is well established that “ ‘[w]hen a litigant is appearing in propria persona, [s]he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations].’ [Citations.]” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056.)

“It is incumbent upon the parties to an appeal to cite the particular portion of the record supporting each assertion made. It should be apparent that a reviewing court has no duty to search through the record to find evidence in support of a party’s position.” (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.) Mother’s briefs contain numerous citations to the record, but are disorganized and at times hard to follow. While we do not excuse her from compliance with the rules by virtue of her pro. per. status, we note that we have reviewed the record thoroughly and considered the arguments raised even when they are less than crystal clear.

We also note that to the extent mother’s arguments are based on an assumption the court terminated her parental rights, she is mistaken. The court made custody orders in a family law case, but did not terminate mother’s parental rights. (See In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 958.)

B. Prior Testimony

Mother asked the trial court to consider past transcripts from prior hearings in lieu of live testimony. Father objected, and the trial court excluded the evidence because mother had not demonstrated the witnesses were unavailable. We disagree this was error.

Evidence Code section 1291 allows the use of former testimony if the witness is unavailable and the party against whom the former testimony is offered was a party to the prior proceeding and had the right to confront and cross-examine witnesses. (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1433–1434.) Here, mother made no showing the witnesses were unavailable. To the contrary, it appeared the witnesses lived within the state. (See Butcher v. Vaca Valley Railroad Co. (1880) 56 Cal. 598, 599 [error to read prior testimony of witness who lived outside county but in California]; Code of Civ. Proc., § 1989.) The court did not abuse its discretion in ruling the evidence inadmissible. (City Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900–901 [abuse-of-discretion standard applied to court’s evidentiary rulings].)

C. Code of Civil Procedure section 170.6

Mother argues the trial court should have granted its request that it disqualify itself under Code of Civil Procedure section 170.6. An order denying disqualification under this provision may only be reviewed by writ of mandate filed and served within 10 days and is not properly before this court on appeal. (Swift v. Superior Court (2009) 172 Cal.App.4th 878, 882; Code Civ. Proc., 170.3, subd. (d).)

We also disagree the trial court’s remarks show it was unfair and violated mother’s right to a fair trial. It referenced Munchausen’s syndrome by proxy as a way of explaining mother’s allegations in the face of several professionals’ conclusions to the contrary, but it was not making a formal diagnosis when it did so. The court also noted that mother had acknowledged being molested as a child (which she had), and indicated that it suspected there was a connection between that and her persistent belief that her children had been molested. But this does not mean the court was biased. To the contrary, the record indicates the court was open-minded and fair to all parties; it simply disagreed with mother and ultimately ruled against her.

D. Misstatements of Opposing Counsel

Mother cites several statements made by opposing counsel and claims he violated his “ethical responsibilities” due to their erroneous nature. We have reviewed the record and disagree. Counsel advocated for father, as he was obligated to do, but did not overstep any boundaries in doing so.

E. The Detective’s Testimony

As a basis for his opinion that father had not molested the children, the investigating detective reviewed a recording of the children together while in mother’s custody. It showed them playing in the bathtub, with the girl placing her fingers in her anus and then in her brother’s nose without being corrected. The detective testified that this did not cause him concern about father molesting the children, but did cause him concern about mother’s failure to redirect the children. This was not error and it was up to the trial court, as the trier of fact, to determine what weight to give the detective’s testimony. We reject mother’s other challenges to the detective’s testimony based on his qualifications as an expert.

F. Change in Circumstances

Mother claims the trial court erred in awarding father sole custody because the circumstances had not changed, and she was not a threat to the safety of the children. We disagree.

The standard of appellate review for custody and visitation orders is the deferential abuse-of-discretion test. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) “ ‘ “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.’ [Citation.]” ’ ” (Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 738.)

Here, the somewhat unusual circumstances of the case support a finding that mother was unwilling to continue co-parenting with father due to her belief (investigated and found to be unfounded) that he had molested the children. In light of father’s shared custody, this situation was not tenable. The court’s Child Custody Recommending Counselor testified that it is detrimental to a child when one parent keeps falsely conveying to that child that the other parent is perpetrating sexual abuse. Such a belief system is a sufficient reason to award the other parent full custody to keep the children protected. Here, the court could reasonably conclude that circumstances had changed since the time the 50/50 custody arrangement and that the best interests of the children now required that father have full custody to avoid detriment to the children.

G. Request for Statement of Decision

Mother argues the court erred in denying her request for a statement of decision, which she made more than one month after the hearing. A statement of decision must be made and received within 10 days after the court announces a tentative decision. (Code Civ. Proc., § 632.) The court did not err in denying mother’s untimely request.

III. DISPOSITION

The judgment is affirmed. Ordinary costs to respondent father.

NEEDHAM, J.

We concur.

JONES, P.J.

BRUINIERS, J.