Filed 9/29/15 M.S. v. R.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

M.S.,

 Plaintiff and Respondent,

v.

R.D.,

 Defendant and Appellant;

A.S.,

 Objector and Respondent.

 G050302

 (Super. Ct. No. 05P000379)

 O P I N I O N

Appeal from postjudgment orders of the Superior Court of Orange County, 

Glenn R. Salter, Judge. Affirmed. Request for judicial notice and/or request to take 

additional evidence on appeal. Granted in part and denied in part. Second request for 

judicial notice and/or request to take additional evidence on appeal. Denied. Motion for 

sanctions for frivolous appeal. Denied.

Law Office of Ronald B. Funk and Ronald B. Funk for Defendant and 

Appellant.
2

No appearance for Plaintiff and Respondent.

John L. Dodd & Associates, John L. Dodd; and John S. Cate, Jr., for 

Objector and Respondent.

* * *

INTRODUCTION

Following a bitter and lengthy custody battle, the trial court awarded sole 

legal and physical custody of 10-and-one-half-year-old A.S. (the minor), to her biological 

father, M.S. (father). The minor’s mother, R.D. (mother), has challenged the judgment 

awarding custody to father in a companion appeal, M.S. v. R.D. (Sept. 29, 2015, 

G049068) (nonpub. opn.). 

In this appeal, mother challenges the trial court’s postjudgment orders. 

Several of those orders denied mother’s requests for a modification of the child custody 

judgment. Mother failed to present any new evidence or proof of changed circumstances. 

Mother also challenges the trial court’s order denying her request to remove the minor’s 

counsel, John S. Cate, Jr. We find no error on the part of the trial court in denying 

mother’s request. Therefore, we affirm the postjudgment orders challenged by mother in 

this appeal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case through the entry of the child 

custody judgment are set forth in full in the companion appeal, M.S. v. R.D., supra, 

G049068. On August 1, 2013, the trial court denied mother’s motion to stay the final 

judgment. The court also ordered that the minor remain in California.

On September 27, 2013, the Orange County District Attorney’s Office 

declined to file criminal charges of child sexual abuse or molestation against father: 

“After 20 months of investigation and review of all relevant documents, the decision was 
3

arrived at that there is a lack of evidence to support the allegations and the filing of 

criminal charges.” Over the next several days, mother called the police department

several times to request welfare checks of the minor.

On October 2, 2013, mother filed an ex parte request for an order to change 

custody. The court set the hearing on the matter for that afternoon “[b]ecause of the 

seriousness of the allegations, including assertions [by mother] that the child may have 

been taken out of the State of California and out of the United States of America in 

violation of this court’s order.” (Boldface omitted.) At the afternoon hearing, new 

counsel substituted in for mother, and the court ordered that the minor be produced to the 

court at 8:30 a.m. on October 4. 

The minor was confirmed to be present in the courthouse, and not abducted 

to Canada by father, when the matter reconvened on October 4, 2013. The minor’s 

counsel relieved Dr. Thea Reinhart from her appointment as the minor’s therapist, and 

replaced her with Dr. Amy Stark. The court ordered that mother’s “parenting time 

pending hearing be monitored in a way that guarantees no risk of child abduction”

(boldface omitted), and that the minor “shall attend school without missing any classes.” 

During mother’s visit with the minor on Sunday, October 6, 2013, mother 

absconded with the minor, and failed to bring the minor to a scheduled exchange with the 

minor’s paternal aunt at 3:00 p.m. that afternoon.

In a declaration filed after mother’s abduction of the minor, the minor’s 

counsel stated he had met with mother on October 2, 2013, and at that time, mother 

“admitted that the molest allegations were groundless,[1]understood that the [district 

 

1

 In a later order, the trial court relied on the minor’s counsel’s declaration, 

as follows: “In court, minor’s counsel represented that [mother] admitted to him that the 

allegations of sexual abuse against the father were made up.” Mother communicated to 

the minor’s counsel that he had incorrectly declared she admitted coaching the minor to 

make the allegations, and the minor’s counsel sought to correct any misstatement with the 

court. At the next hearing, the court clarified with the minor’s counsel that what was in 

the declaration was correct. Mother claims this demonstrates the trial court’s bias against 
4

attorney] had declined filing charges against [father], and, while still denying that she had 

coached [the minor] to make these horrendous claims, nevertheless suggested that peace 

be restored to [the minor]’s life. She even offered to enter into conjoint counseling [with 

father] to work on communication. [¶] It was with those statements in mind that I opined 

to the court on Fri[day] (10/4) that I did not think that her 10/6 visit needed to be 

monitored. In retrospect, I was wrong, very wrong.”

Mother brought the minor to the courthouse on Monday, October 7. The 

court ordered that the minor be released to her paternal aunt and immediately returned to 

school. Mother’s newly retained counsel substituted out that day.

On October 9, 2013, father’s request for a move-away order was heard. At 

that hearing, the court expressed concern about mother’s violation of the court’s orders 

by failing to return the minor after the October 6 visit and by failing to ensure that the 

minor got to school on time the next day. The court found mother’s actions to be 

unjustified. The court also found that the investigation into father’s alleged molestation 

of the minor was based on falsehoods, citing mother’s previous admissions in court, and 

her recent statements to the minor’s counsel. The court found, “[mother] has been tested 

and she has failed; the Court is unable to trust [mother] at this time.” The court therefore 

ruled: “The orders regarding parenting time for [mother] are vacated. [¶] [Mother] shall 

have no visitation with the minor child pending further court order unless and until the 

Court sees contrition on the part of the [mother] and finds reasons to restore the 

relationship.” (Boldface omitted.)

In December 2013, the minor’s paternal aunt filed a petition to be 

appointed the minor’s guardian. Father supported the petition; mother opposed it. Father 

was living in Canada, and was unable to return to the United States, apparently due to 

problems with immigration. Father’s mother had been caring for the minor in father’s 

 

her. We discern no bias from the trial court’s reliance on the statements in the minor’s 

counsel’s declaration.
5

residence in Orange County, but needed to return to her home in Canada due to medical 

issues, prompting the paternal aunt to seek guardianship of the minor. 

In March 2014, mother filed a motion for reconsideration of several prior 

requests for orders, pursuant to Code of Civil Procedure section 1008, subdivision (b). 

Two of the earlier requests for orders had asked that the court’s custody judgment be 

modified to give mother sole legal and physical custody. One requested reversal of the 

October 9, 2013, order that had vacated mother’s parenting time, and had ordered that 

mother was to have no visitation with the minor “pending further court order unless and 

until the Court sees contrition on the part of the [mother] and finds reasons to restore the 

relationship.” (Boldface omitted.) The final request was an ex parte request to change 

legal and physical custody, which the court had denied because (1) there was no showing 

of an emergency, (2) a scheduled hearing for change of custody was already on the 

calendar, and (3) mother had not provided any assurance that the minor would be safe in 

her custody. 

The only new evidence supporting mother’s motion for reconsideration was 

the declaration of Dean Tong. Tong claimed to be an expert in the field of false 

allegations of child sexual abuse, and had been retained by father in June 2013 in 

connection with possible criminal charges. In Tong’s declaration in support of the 

motion for reconsideration, Tong explained that, at father’s request, he had summarized 

the findings of Dr. Grace Coleman’s work with the minor, and asserted that his summary 

had been the basis for the district attorney refusing to file criminal charges against father. 

Tong declared that he had later learned father had not provided him with a full case 

history and had misrepresented Dr. Coleman’s role in the case. Tong further declared 

that he now believed Dr. Coleman had violated various ethical codes, and believed the 

minor had been sexually abused.2

 

2

 Both father and father’s criminal counsel filed declarations refuting 

virtually the entirety of Tong’s declaration. Specifically, the declarations averred that 
6

The trial court issued an order to show cause why monetary sanctions 

should not be imposed against Tong for (1) knowingly making false accusations of child 

sexual abuse, (2) violating an order sealing the court records in this case by reading and 

relying on sealed records, and (3) discussing allegations of sexual abuse of the minor 

with Dr. Reinhart although the psychotherapist-patient privilege had never been waived. 

(Fam. Code, § 3027.1; Code Civ. Proc., § 177.5; Cal. Rules of Court, rule 5.14(c).) In 

response to the order to show cause, Tong withdrew his declaration.

In April 2014, mother filed a request for an order to remove Cate as the 

minor’s counsel. In support of her request, mother attached Dr. Reinhart’s deposition 

transcript, which had been taken in the separate guardianship proceeding. While father, 

father’s counsel, and the minor’s counsel were not present at the deposition, a member of 

the press was.3

On April 21, 2014, the minor’s counsel filed an ex parte request to permit 

the minor to move to Napa with her paternal aunt, who was leaving the next day. Mother 

opposed the request, and filed her own ex parte request to shorten the time on a hearing to 

change custody so that the minor could be placed with mother. The minor also filed a 

request for a domestic violence restraining order against mother, in which the minor set 

forth prior violations of the court’s earlier “no contact” order and asserted the minor was 

in fear that mother, mother’s friend, and mother’s husband would “continue to stalk her, 

visit her at school, record her attempts to speak to them, and possibly, abduct her again.” 

 

Tong had been retained to opine on damages caused by mother’s coaching; Tong’s 

summary of Dr. Coleman’s work with the minor was never provided to the district 

attorney, and therefore could not have been used to convince the district attorney not to 

file criminal charges against father; and Dr. Coleman was never a therapist for the minor. 

Father’s criminal counsel expressed the opinion that Tong had violated the attorney-client 

privilege, the duty of confidentiality, and the rules of professional conduct in submitting 

the declaration in support of mother’s motion for reconsideration.

3

 Mother claims that media member, Voice of OC, “applied for and was 

granted by the guardianship court status as an ‘Interested Party’ in the guardianship 

case.” Nothing in the appellate record supports this claim, however. 
7

The minor’s request for a restraining order also noted that mother was using the minor’s 

name and photograph on social media Web sites to drum up public support for mother’s 

cause.

The trial court denied the minor’s counsel’s request for the minor to move 

to Napa, finding it was in the minor’s best interests to remain in her current school for the

remainder of the school year. The court also denied mother’s request for a change of 

custody. Because the paternal aunt was leaving for Napa the next day, the court 

appointed Sheryl Edgar, father’s previous counsel, as a temporary guardian. Just four 

days later, the court relieved Edgar as the minor’s temporary guardian. The court 

continued the hearing on all other pending matters.

At a hearing on May 7, 2014, the court appointed Dr. David Mann as a 

child custody evaluator. The court expressed concern that Dr. Reinhart had been 

attempting to influence the court with improper ex parte communications. Also at that 

hearing, the court advised the parties it had found numerous failures to appear by mother 

on outstanding traffic violations, and ordered her remanded to the custody of the sheriff.

On June 6, 2014, mother filed an ex parte request to (1) dismiss father’s 

relocation request if he failed to pay Dr. Mann, (2) unseal the trial and posttrial 

transcripts, (3) place prior matters back on calendar, and (4) grant mother custody of the 

minor based on new evidence and on father’s alleged abandonment of the minor. The 

court denied the request to dismiss father’s relocation request, without prejudice, because 

there was no admissible evidence that father had not paid fees to Dr. Mann. The court 

denied the request to unseal the transcripts because the matter was on appeal, and mother 

was therefore required to seek relief from the Court of Appeal. The court refused to 

place other matters back on calendar because the court’s minutes reflected that mother 

had not appeared on time in court, and the matters went off calendar due to mother’s 

failure to pursue them; this ruling was without prejudice to mother resubmitting her 

requests for orders. Finally, the court denied mother’s request for a change of custody 
8

because it was unsupported by credible evidence. The court noted that its denial of the 

request to change custody was made without prejudice, and that mother “may always file 

a proper request for order seeking a change of the parenting time arrangement.” 

(Boldface omitted.) 

Also on June 6, the court denied mother’s request to remove Cate as the 

minor’s counsel. On that date, the court also lifted the previous travel restrictions, 

permitting the minor to travel under the terms of the judgment.

Mother filed a notice of appeal on June 13, 2014 from the trial court’s 

orders of April 21, April 25, May 7, and June 6, 2014. (Many of these orders cover 

multiple issues. We have only considered on appeal the issues specifically raised in 

mother’s appellate briefs.)

In August 2014, the court ordered that the minor could reside with her

paternal aunt in Napa, California, and transferred the case to the Superior Court of Napa 

County. The court also ordered reunification therapy between the minor and mother.4

 

4

 The minor’s request for judicial notice and/or request to take additional

evidence on appeal is granted in part and denied in part. All the items that the minor 

asked this court to take judicial notice of are properly noticeable, as they are all records 

of courts of this state. (Evid. Code, § 452, subd. (d)(1).) Mother did not file any 

opposition to this request. 

 We will take judicial notice of (1) the record in the companion appeal, 

M.S. v. R.D., supra, G049068; (2) the record in prior writ proceeding No. G050449; 

(3) the record in prior writ proceeding No. G050538; (4) the record in prior writ 

proceeding No. G050301; and (5) the order on an order to show cause, in Orange County 

Superior Court, case No. 05P000379, filed August 19, 2014. 

 The other documents of which the minor asks us to take judicial notice 

are not relevant to the issues raised by this appeal, and we deny the request as to them.
9

DISCUSSION

I.

REQUESTS TO CHANGE CUSTODY

On appeal, mother challenges several rulings by the trial court which 

refused to reverse or modify the child custody judgment. 

Custody orders are reviewed for abuse of discretion. (Montenegro v. Diaz

(2001) 26 Cal.4th 249, 255.) Once a permanent custody order is in place, it may be

modified only if there has been a “significant change of circumstances justifying a

modification.” (Id. at p. 256.) “‘[The changed circumstances rule] provides, in essence, 

that once it has been established that a particular custodial arrangement is in the best 

interests of the child, the court need not reexamine that question. Instead, it should

preserve the established mode of custody unless some significant change in

circumstances indicates that a different arrangement would be in the child’s best interest. 

The rule thus fosters the dual goals of judicial economy and protecting stable custody

arrangements.’ [Citation.]” (Ibid.; see In re Marriage of Brown & Yana (2006) 37

Cal.4th 947, 955-956.) The parent requesting modification must introduce admissible

evidence of changed circumstances. (In re Marriage of Dunn (2002) 103 Cal.App.4th

345, 348.)

Mother argues she should be granted sole legal and physical custody of the 

minor, pursuant to Family Code section 3010, subdivision (b). Section 3010 reads as 

follows: “(a) The mother of an unemancipated minor child and the father, if presumed to 

be the father under Section 7611, are equally entitled to the custody of the child. [¶] 

(b) If one parent is dead, is unable or refuses to take custody, or has abandoned the child, 

the other parent is entitled to custody of the child.” 

Family Code section 3010 provides the basic ground rules of parental 

custody, and applies in a situation where no other court order involving custody exists. 

In the context of criminal liability for the abduction of a child, the courts have held: 
10

“That manifestly is not the purpose of the proviso that only a person ‘not having a right

of custody’ may violate [Penal Code] section 278 [prescribing punishment for child

abduction]. Rather, its purpose is to acknowledge that in the absence of an order or

decree affecting the physical custody of the child either parent is privileged (peaceably)

to take exclusive possession of the child. [Citations.] Prior to a judicial order depriving

a parent of full custody both parents have ‘a right of custody.’ [Citation.]” (People v. 

Irwin (1984) 155 Cal.App.3d 891, 896-897, italics added.) An order granting sole 

custody to one parent, and thus depriving the other parent of custody, such as the 

judgment in this case, alters the landscape, and makes the presumptions of Family Code 

section 3010 inapplicable.

Mother contends father has abandoned the minor or is unable to or refuses 

to take custody of the minor. “The meaning of ‘abandonment’ is not provided in former 

section 279 [of the Penal Code] or section 3010 of the Family Code, but the term has 

been given specific and technical definition by statute and case law. The definition of 

‘“abandonment” most frequently employed by appellate opinions’ is ‘“an actual 

desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, 

the parental relation and throw off all obligations growing out of the same” . . . .’ 

[Citations.]” (People v. Ryan (1999) 76 Cal.App.4th 1304, 1315, fn. omitted.) Father has 

consistently appeared through counsel at hearings in the trial court, has maintained 

contact with the minor through Skype, and has continued to provide for the minor’s 

needs. Father has not abandoned the minor within the meaning of Family Code 

section 3010, subdivision (b). 

Mother repeatedly contends that the trial court found father abandoned the 

minor. What the court actually said when appointing father’s former counsel as a 

temporary guardian, was that father had “provided for the minor’s care,” but that if the 

paternal aunt had to move back to Napa “leaving the minor without any supervision . . . , 

it would appear [father] is abandoning the minor.” Because father was able to continue 
11

providing for the minor until the court approved the minor’s move to Napa, no 

abandonment occurred.

While father has not been able to enter the United States, he has exercised 

his physical and legal custody rights over the minor. During the time father has been 

unable to be with the minor, he has arranged for her care and well-being. In the context 

of juvenile dependency proceedings, a parent is deemed to have left a child without 

support when the parent cannot arrange for the care of the child, or when the adult with 

whom the child resides in the absence of the parent can no longer provide for the child’s 

care or support. (Welf. & Inst. Code, § 300, subd. (g).) Although father is unable to 

enter the United States, he has provided for the care of the minor through his mother, and 

then his sister-in-law.

Even if mother were correct that father cannot exercise physical custody 

over the minor while residing outside the United States, that does not mean that custody 

must be transferred to mother. The trial court found joint custody or sole custody to 

mother would not be in the minor’s best interests. Father’s residency was not a part of 

that decision, so a change in father’s residence does not require reversal of the final 

custody judgment. None of mother’s various requests for orders provides any evidence 

of changed circumstances involving the factual findings supporting the trial court’s 

determination of custody. 

And even if the physical custody order needed to be changed due to father’s 

inability to enter the United States, there would be no reason to change legal custody of 

the minor. Given the trial court’s earlier findings about mother and father’s inability to 

coparent, any change in legal custody would not be in the minor’s best interests. If father 

lost custody based on his inability to enter the United States, as mother argues, the relief 

to be granted would not be automatically awarding sole custody to mother; it would be a 

new evidentiary hearing to determine what is the best solution “according to the best 
12

interest of the child as provided in [Family Code] Sections 3011 and 3020.” (Fam. Code, 

§ 3040, subd. (a).)

Mother also argues that the trial court violated Family Code section 3040, 

which sets the order of preference for awards of custody. This statute is not applicable, 

however, because none of the trial court’s postjudgment orders contemplates, much less 

changes, the award of custody to anyone other than father. Permitting the minor to live 

with her paternal aunt does not effect a change of the custody judgment, and the order 

appointing father’s prior counsel as the temporary guardian was only a temporary 

measure. The cases and statutes mother cites regarding awarding custody to a nonparent 

are inapposite.

Throughout her appellate briefs, mother expresses concern that the trial 

court’s orders are effecting a “travesty of justice,” and denying mother and the minor 

their fundamental rights. As detailed in M.S. v. R.D., supra, G049068, mother accused 

father of sexually abusing the minor, then stipulated and testified that no abuse had 

occurred, only to withdraw from the stipulation and again claim that sexual abuse had 

occurred. Since the entry of the trial court’s custody judgment, in which the court 

expressed a goal of joint custody, mother has accused father of taking the minor out of 

the country; failed to return the minor at the end of a scheduled visitation; violated 

no-contact orders; posted the minor’s name and photograph on social media Web sites; 

provided sealed, confidential court records to various third parties; encouraged the 

minor’s court-appointed psychotherapist to violate privilege and the duties of 

confidentiality; supported a petition for guardianship of the minor filed by mother’s 

husband, who had previously been accused of assaulting mother; and continued to submit 

to the court declarations and depositions of witnesses to support mother’s claim that 

father has molested the minor, and that mother did not coach the minor to make 

accusations of molestation, despite the trial court’s findings to the contrary. In short, this 

case may well be a travesty of justice, but not in the way mother suggests.
13

II.

REQUEST TO REMOVE THE MINOR’S COUNSEL

The trial court denied mother’s request to remove the minor’s counsel. 

Mother argues that the court abused its discretion in doing so, and also argues that the 

court erred by refusing to receive live testimony from Dr. Reinhart in support of that 

request. The appointment of counsel for a minor in a custody proceeding is a matter left 

to the discretion of the trial court. (Fam. Code, § 3150.)5 

As explained more fully in the companion opinion, M.S. v. R.D., supra, 

G049068, Dr. Reinhart was appointed by the court as a therapist for the minor. 

Dr. Reinhart’s confidential communications with the minor were unquestionably covered 

by the psychotherapist-patient privilege. (Evid. Code, §§ 1012, 1014.) The minor did 

not waive the privilege. Dr. Reinhart, however, submitted to a deposition in the 

guardianship proceedings. In that deposition, she refused to answer questions regarding 

her direct communications with the minor, but she testified as to her conclusions drawn 

from those communications. Mother submitted excerpts from the transcript of 

Dr. Reinhart’s deposition in support of the request to remove the minor’s counsel. 

Dr. Reinhart’s declaration was also a part of the trial court’s record, having been filed in 

support of mother’s postjudgment request for a modification of the custody judgment. 

The court indicated at the hearing on the request to remove the minor’s counsel that it had 

read both the deposition and the declaration.

 

5

 Family Code section 3150 provides: “(a) If the court determines that it 

would be in the best interest of the minor child, the court may appoint private counsel to 

represent the interests of the child in a custody or visitation proceeding, provided that the 

court and counsel comply with the requirements set forth in Rules 5.240, 5.241, and 

5.242 of the California Rules of Court. [¶] (b) Upon entering an appearance on behalf of 

a child pursuant to this chapter, counsel shall continue to represent that child unless 

relieved by the court upon the substitution of other counsel by the court or for cause.” 
14

Mother argues that she had an absolute right to have Dr. Reinhart testify at 

the hearing on the request to remove the minor’s counsel, citing Family Code 

section 217, which provides: “(a) At a hearing on any order to show cause or notice of 

motion brought pursuant to this code, absent a stipulation of the parties or a finding of 

good cause pursuant to subdivision (b), the court shall receive any live, competent 

testimony that is relevant and within the scope of the hearing and the court may ask 

questions of the parties. [¶] (b) In appropriate cases, a court may make a finding of good 

cause to refuse to receive live testimony and shall state its reasons for the finding on the 

record or in writing. . . . [¶] (c) A party seeking to present live testimony from witnesses 

other than the parties shall, prior to the hearing, file and serve a witness list with a brief 

description of the anticipated testimony. If the witness list is not served prior to the 

hearing, the court may, on request, grant a brief continuance and may make appropriate 

temporary orders pending the continued hearing.” 

California Rules of Court, rule 5.113 sets forth the factors supporting a 

finding of good cause to exclude live testimony: “(b) Factors [¶] In addition to the rules

of evidence, a court must consider the following factors in making a finding of good 

cause to refuse to receive live testimony under Family Code section 217: [¶] (1) Whether 

a substantive matter is at issue—such as child custody, visitation (parenting time), 

parentage, child support, spousal support, requests for restraining orders, or the 

characterization, division, or temporary use and control of the property or debt of the 

parties; [¶] (2) Whether material facts are in controversy; [¶] (3) Whether live testimony 

is necessary for the court to assess the credibility of the parties or other witnesses; [¶] 

(4) The right of the parties to question anyone submitting reports or other information to 

the court; [¶] (5) Whether a party offering testimony from a non-party has complied with

Family Code section 217(c); and [¶] (6) Any other factor that is just and equitable. [¶] 

(c) Findings [¶] If the court makes a finding of good cause to exclude live testimony, it 

must state its reasons on the record or in writing. The court is required to state only those 
15

factors on which the finding of good cause is based. [¶] . . . [¶] (e) Witness lists [¶] 

Witness lists required by Family Code section 217(c) must be served along with the 

request for order or responsive papers in the manner required for the service of those 

documents . . . . If no witness list has been served, the court may require an offer of 

proof before allowing any nonparty witness to testify.”

Even if live testimony was permitted, pursuant to Family Code section 217, 

subdivision (b), there was substantial evidence from which the trial court could have 

made a finding of good cause not to permit live testimony.6 The removal of the minor’s 

counsel is not a substantive matter, pursuant to California Rules of Court, 

rule 5.113(b)(1). Pursuant to rule 5.113(b)(6), the court properly considered 

Dr. Reinhart’s violation of the psychotherapist-patient privilege and of the duty of 

confidentiality in finding good cause for excluding live testimony on this issue. In 

addition, Dr. Reinhart’s live testimony was not relevant, pursuant to Family Code 

section 217, subdivision (a) and California Rules of Court, rule 5.113, as discussed post. 

Family Code section 217, subdivision (c) and California Rules of Court, 

rule 5.113(e) do not appear to have been complied with, as no witness list identifying 

Dr. Reinhart appears in the appellate record.7 

Turning to the substance of mother’s request that the minor’s counsel be 

removed, we find no abuse of discretion by the trial court. Mother argued that counsel 

should be removed because he was not acting in the minor’s best interests. Specifically, 

mother criticized the minor’s counsel for failing to present to the trial court 

Dr. Reinhart’s opinions that the minor had been the victim of a crime. What must be 

 

6

 The trial court did not make findings on the record or in writing pursuant 

to Family Code section 217, subdivision (b) or California Rules of Court, rule 5.113(c). 

It is obvious from the transcript of the hearing, however, that the court did not find good 

cause for hearing live testimony, as explained in the text.

7

 Mother asserts in her opening brief on appeal that Dr. Reinhart “was 

subpoenaed and available to testify on the date of the hearing.” Nothing in the appellate 

record, however, supports that assertion.
16

remembered is that the minor’s first counsel, Harold LaFlamme, refused to allow 

Dr. Reinhart to testify at the child custody trial, despite mother’s claim that Dr. Reinhart 

would have testified the minor had been the victim of a crime. As we explained in the 

companion opinion, M.S. v. R.D., supra, G049068, there was no prejudice due to the lack 

of Dr. Reinhart’s testimony at trial because Dr. Reinhart’s child abuse report was 

thoroughly investigated, after which any allegation of child abuse was determined to be 

unsubstantiated. Mother fails to explain how Cate’s failure to attempt to bring those 

allegations to the court’s attention again was not in the minor’s best interests.

Mother argues that Cate should have been removed as the minor’s counsel 

because he had too strongly aligned himself with father. Mother relies on the fact that the 

minor’s counsel submitted declarations from father and the minor’s paternal aunt in 

support of the minor’s request to move to Napa. Because the request was made by the 

minor, we find nothing improper in the minor’s counsel preparing those declarations, and 

including his own name, state bar number, and contact information on the title page of 

each.

Mother also argues Cate failed to ensure that the minor was regularly 

undergoing therapy with her court-appointed psychotherapist. The factual basis for this 

claim is mother’s declaration that she was “informed” that the minor had not yet been 

seen by the new therapist, more than six months after she had been appointed. Mother’s 

unsupported contention was an insufficient ground for removing the minor’s counsel.

Further, Dr. Reinhart’s opinions were not relevant to mother’s repeated 

attempts to modify the custody judgment. The custody judgment could only be modified 

by a showing of changed circumstances. (Montenegro v. Diaz, supra, 26 Cal.4th at

p. 256.) Dr. Reinhart’s opinion that the minor had been the victim of a crime predated 

the judgment, and was not evidence of new facts or a change in circumstances. In her 

deposition, Dr. Reinhart opined that Dr. Coleman’s treatment of the minor was

inappropriate because of the type of therapy used, her lack of experience with minor 
17

patients, conducting therapy at the same time that the minor was in therapy with 

Dr. Reinhart, and Dr. Coleman’s previous relationship with father.8 Dr. Reinhart became 

aware of Dr. Coleman’s therapy with the minor because the minor’s previous counsel, 

LaFlamme, instructed Dr. Coleman to contact Dr. Reinhart and provide the information 

to her, and further instructed Dr. Coleman to stop seeing the minor. Therefore, all of 

Dr. Coleman’s contacts with the minor occurred before Cate was appointed as the 

minor’s counsel.

III.

THE MINOR’S MOTION FOR SANCTIONS AND THE MINOR’S SECOND 

REQUEST FOR JUDICIAL NOTICE AND/OR REQUEST TO TAKE 

ADDITIONAL EVIDENCE ON APPEAL

The minor has brought a motion under California Rules of Court,

rule 8.276(a)(1) for an order imposing sanctions against mother and her counsel for 

pursuing a frivolous appeal. This motion is virtually identical to the motion filed in the 

companion case (M.S. v. R.D., supra, G049068), and the same analysis applies in this 

case. The minor requests sanctions in the amount of $5,164.68 for attorney fees and costs 

incurred in preparing the minor’s appellate brief. The minor also requests that mother 

and her counsel be ordered to pay sanctions to the clerk of this court to compensate the 

state for the cost of processing the appeal. Mother filed opposition to the motion for 

sanctions.

Mother’s appeal is neither frivolous nor pursued solely to cause delay. 

(Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1).) The minor fails to point

to any evidence supporting a claim that mother’s appeal was pursued for an improper

 

8

 We note that father’s declaration in opposition to Tong’s declaration, 

discussed ante, refutes much of Dr. Reinhart’s testimony regarding Dr. Coleman.
18

motive. There is no evidence that mother’s appeal caused any harassment of father, who

did not even file an appellate brief. 

The minor identified the following as evidence that the appeal is 

objectively without merit: (1) mother argued for application of an erroneous standard of 

review, (2) mother argued about orders the minor claims are moot, (3) mother relied on 

facts outside the record, (4) mother argued about the merits of appeal No. G049068, and 

(5) none of the issues raised by mother’s appeal “is remotely arguable.” While these may 

constitute a failure to comply with the appellate rules, they do not rise to the level of an 

appeal that is completely without merit. Our affirmance of the postjudgment orders does 

not mean that mother’s appeal was wholly without merit. (In re Marriage of Flaherty

(1982) 31 Cal.3d 637, 650; In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th

510, 516.)

The minor candidly admits that one of the reasons for bringing the motion 

for sanctions is to deter future counsel from representing mother should she choose to 

pursue the litigation. A request for sanctions in one case should not be intended to 

prevent the other party from retaining counsel in other matters.

The minor also asks this court to take judicial notice of a federal complaint 

filed by mother against father, the minor’s former counsel, the SSA social workers, the 

Orange County Superior Court, former visitation monitors, and others, alleging, inter alia, 

violation of mother’s and the minor’s due process rights. As a record of a United States 

court, this is a matter of which this court may take judicial notice. (Evid. Code, § 452, 

subd. (d)(2).) We decline to take judicial notice of this complaint, however, because 

mother’s separate pursuit of damages for alleged federal relief is not relevant to the issues 

raised on this appeal, nor is it relevant to the motion for sanctions.
19

DISPOSITION

The postjudgment orders are affirmed. The minor shall recover costs 

incurred on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

RYLAARSDAM, J.