Filed 1/18/23 Stacy V. v. Frank B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

STACY V.,

Respondent,

v.

FRANK B.,

Appellant.

 B316943

 (Los Angeles County

 Super. Ct. No. LF005780)

APPEAL from an order of the Superior Court of Los 

Angeles County, Firdaus F. Dordi, Judge. Affirmed.

Frank B., in pro. per., for Appellant.

Cohen and Schwartz and Kenneth L. Schwartz for 

Respondent.

__________________________

Frank B. (Father) appeals from a family court order 

denying his request to modify a final custody order that gave 

Stacy V. (Mother) sole legal and physical custody over their two 

children. Father contends the family court erred in excluding 
2

from evidence reports prepared by the Department of Children 

and Family Services (DCFS) and other documents offered to 

support his request, and he was entitled to joint custody because 

Mother alienated the children from him and violated existing 

visitation orders. The court did not abuse its discretion in 

excluding Father’s evidence. Further, Father’s admissible 

evidence did not compel a finding there was a significant change 

in circumstances such that a modification would be in the 

children’s best interest. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Custody Orders

This is Father’s second appeal in this child custody action. 

As we described in Stacy V. v. Frank B. (Dec. 18, 2019, 

No. B293010 [nonpub. opn.]), Mother lives in Tarzana and works 

as an elementary school teacher. Father lives in Woodland Hills, 

about 20 miles from Mother, and has been retired since 2008. 

Mother and Father met in 2009, and they have two children

together, Brendan (born in 2010) and Luke (born in 2011). 

Mother and Father never married or lived together.

On September 29, 2011 Mother filed a petition in family 

court seeking sole legal and physical custody over the boys and 

child support. Father filed a cross-petition seeking joint legal 

and physical custody, with no child support. On September 30, 

2013 the family court1 issued a pendente lite custody order 

awarding Mother sole legal and physical custody, with visitation 

for Father, after finding Father engaged in “unrelenting attacks” 

on Mother and refused to cooperate in coparenting. 

1 Commissioner Steff R. Padilla.
3

On May 5, 2016 the family court2 granted Father’s request 

for joint legal and physical custody in light of his completion of 

classes and therapy and on the recommendation of the courtappointed child custody evaluator. The court imposed conditions 

to facilitate coparenting, including that Mother and Father could 

only communicate with each other through Our Family Wizard 

(OFW) messaging software, and the court admonished each

parent to “refrain from controlling the other parent in his or her 

parenting” and “to limit critical, insulting and destructive emails 

to the other parent.” 

At a May 24, 2017 settlement conference, Mother and 

Father executed a stipulation and order of settlement providing

for joint legal and physical custody with a parenting plan and 

allocation of child-rearing expenses. A stipulated judgment was 

entered on August 17. However, on April 5, 2018 Mother filed a 

postjudgment request for order awarding her sole legal and 

physical custody of the boys. Mother argued Father had been 

extremely controlling and incapable of coparenting, and he would 

lash out at her “almost daily” over OFW, interfering with her 

custodial time and making handoffs and practical 

accommodations difficult. Mother also asserted the boys spent 

too much time shuttling between the parents’ homes and school;

Father had become “obsessed” with the boys’ participation in 

sports; Father proposed to separate the boys for custody purposes 

because Luke was more athletically inclined than Brendan; and 

Father had taken the boys to a physical examination without 

Mother’s consent. 

On July 27, 2018 the family court granted Mother’s request 

and awarded her sole legal and physical custody of the boys (the 

2 Judge Shirley K. Watkins.
4

July 2018 custody order). The court found Mother presented 

credible evidence of changed circumstances adversely impacting 

the boys. The modified parenting plan provided that during the 

school year Father had visits with the boys on the first, third, and 

fifth weekends of the month and Tuesday and Thursday

afternoons. During the summer the parents had custody of the 

boys on alternating weeks, as well as alternating holidays and 

vacations. 

Father appealed the modified custody order, and on

December 18, 2019 we affirmed. (Stacy V. v. Frank B., supra, 

No. B293010.) We held, “The trial court did not abuse its 

discretion in finding Father’s continued abusive behavior toward 

Mother in sending her dozens of messages berating her parenting 

style constituted a changed circumstance supporting a grant of 

sole legal and physical custody to Mother because of Father’s 

inability to coparent their sons and his interference with 

Mother’s custodial time.” (Id.) We noted Father could 

prospectively seek joint custody based on a showing of changed 

circumstance or that a modification of the visitation schedule was 

in the boys’ best interests. 

B. Father’s RFO To Modify Custody

On January 21, 2021 Father filed a request for order (RFO) 

seeking modification of the July 2018 custody order to award him

joint legal and physical custody of the boys with an equal 

timeshare. On March 25 the family court set an evidentiary 

hearing on the RFO and ordered the parties to submit 

declarations setting forth their positions and attaching

supporting documents as exhibits. The court clarified that the 
5

declarations would serve as the parties’ direct testimony, with 

cross-examination in court.3

In his April 22, 2021 declaration, Father asserted as 

changed circumstances that Mother alienated the boys from 

Father (especially 10-year-old Brendan), and the parental 

alienation constituted emotional child abuse. He also argued 

Mother repeatedly violated the July 2018 custody order,

interfering with his visitation. Father averred that by Mother’s 

own admission, the boys were “‘doing great’” at the time of the 

July 2018 custody order, yet by September 2020 Brendan was 

suicidal.4 Father stated Raychel Richard, a DCFS social worker

who investigated a March 2019 welfare referral concerning the 

boys, determined that Brendan’s therapist (Anne Marsh) was 

biased against Father, and this had the potential to exacerbate 

Brendan’s alienation from Father. 

Father’s declaration quoted numerous excerpts from 

“Delivered Service Logs” produced by DCFS, which documented

3 Judge Firdaus F. Dordi presided over the case in 2021 and 

made all rulings at issue on appeal. Mother filed a declaration on 

April 18, 2021 opposing the RFO, but her declaration is not 

included in the appellate record. On May 11 Luke and Brendan’s

court-appointed attorney filed a declaration in opposition to the 

RFO. 

4 Father attached and the family court admitted into 

evidence Mother’s September 30, 2020 declaration opposing an 

earlier request for order, in which Mother wrote, “Our son 

Brendan has been experiencing suicidal episodes, has been 

physically hurting himself. Brendan is in no condition physically, 

emotionally and/or mentally to commence any sort of 

reunification therapy with [Father] at this time, or in the near 

future.” 
6

several social workers’ investigations of both the March 2019 

welfare referral and a second referral in June 2020 (the DCFS 

reports). The March 2019 delivered service logs contained entries 

prepared by social workers Rebecca Megerdichian and Shannon 

Morris describing their own observations and conversations with 

witnesses. The logs also contained information the two social 

workers received from Richard, who had performed an 

assessment of Mother’s home on March 23, 2019. The June 2020 

delivered service log contained entries reflecting written and oral 

statements from Richard to Morris describing Richard’s

observations and conversations with witnesses, as well as 

information conveyed to Richard by other social workers. 

Father’s declaration quoted portions of these reports indicating 

social workers observed Mother trying to alienate the boys from 

Father by, among other things, badmouthing Father, coaching 

the boys to lie about Father to the social workers, and 

encouraging Brendan to communicate constantly with Mother 

during Father’s custodial time. Father also cited these reports to 

show Mother’s home was unsafe because it was dirty; she allowed 

the boys to play video games and eat junk food with abandon; and 

she controlled what they could wear.

Father’s declaration described his participation in a 

continuing legal education seminar titled “Reunification in Case 

involving Parental Alienation” and cited (but did not attach) 

several “learned treatises” ostensibly defining parental alienation 

and describing the typical behaviors utilized by parents to 

alienate children. Father attested, “I have observed our son 

Brendan exhibit all of these behaviors during his custodial 

timeshare visits with me, most pointedly during the past two (2) 

years . . . .” Father also cited publications stating parental 

alienation is a form of “‘emotional child abuse’” that has adverse 
7

impacts on a child’s welfare, including loss of self-respect, low 

self-esteem, guilt, anxiety, depression, lack of impulse control, 

impaired relations, and educational problems. Father stated he 

had observed Brendan exhibiting all of these behaviors. For 

example, Brendan was anxious, he slept with his older half-sister 

because he was scared at night, he did not wish to visit with 

Father, he was addicted to video games, and he ate junk food and 

sweets. In addition, Father recounted that Marsh told him that 

she planned to start Brendan on anti-depressant drugs to counter 

his suicidal thoughts. 

Finally, Father’s declaration described Mother’s alleged 

violations of the July 2018 custody order. These included an 

incident on December 29, 2020 when Brendan refused to go from 

Mother’s vehicle into Father’s vehicle during a scheduled 

exchange. Father stated he heard Mother tell Brendan, “‘You 

don’t have to go with him if you don’t want to.’” Father called the 

police, and the Los Angeles County Sheriff’s Department (LASD) 

prepared an incident report, which Father attached to his 

declaration. Father cited another occasion on January 10, 2021 

when Mother refused to acknowledge Father’s visitation time.

5

Father also averred Mother worked to frustrate the custody plan 

5 OFW messages between Mother and Father attached to 

Father’s declaration and admitted into evidence showed Mother 

and Father disagreed on who had custody of the boys under the 

July 2018 custody order for the night of Sunday, January 10, 

2021 continuing into Monday. Father asserted a school closure 

on Monday operated to extend his first-weekend-of-the-month

visitation to Monday. However, Mother contended her winter 

vacation schedule superseded Father’s visitation because she and 

the children were concluding a winter vacation, which allocated

custody for Sunday evening to Mother. 
8

by failing to include Father’s contact information on school 

registration forms; refusing to provide Father with copies of the 

boys’ insurance and social security cards; preventing Brendan 

from participating in evening video calls with Father during her 

custodial time; taking photographs of the boys during calls with 

Father and sending them to Marsh; instructing Brendan to delete 

images on Father’s phone and tablet that would have revealed 

Brendan was not participating in calls with Father; moving with 

the boys to a different residence in late 2019 without advising 

Father; discussing court orders with the boys; and providing

Father “false and misleading information” about their hybrid 

school schedule during the COVID-19 pandemic.

On May 11, 2021 minor’s counsel Gregory Pedrick served 

evidentiary objections to the 22 exhibits attached to Father’s 

declaration on the grounds of lack of foundation, lack of 

authentication, hearsay, and (as to some exhibits) improper 

opinion testimony. On May 14 the court filed “[p]rovisional” 

written rulings on the objections, sustaining objections to the 

DCFS reports and LASD incident report, as well to emails 

authored by Marsh, Richard, and Pedrick, but overruling 

objections to the transcripts of prior proceedings, party 

declarations, and correspondence between Mother and Father.6 

6 The family court also sustained Pedrick’s objections to 

Father’s submission of declarations executed years earlier by 

Father’s adult children and a prior therapist, school registration 

forms, and photographs Father alleged Brendan had tried to 

delete from his phone and computer. 
9

C. Evidentiary Hearing 

The family court conducted an evidentiary hearing on the

RFO on May 21 and August 6, 2021. Mother was represented by 

counsel; Father was self-represented; and Brendan and Luke

were represented by Pedrick. Mother’s attorney called DCFS 

social workers Morris and Richard as witnesses. In addition, the 

court allowed Father and Mother to provide direct testimony as 

to recent developments.

7

Morris testified she was the DCFS supervising social 

worker assigned to a 2019 referral, and she conducted some of 

the interviews in connection with the investigation, including 

with Father and the boys at the DCFS office and with Mother

over the telephone. The referral alleged possible physical abuse 

by Father, the children were afraid of Father and did not want to 

go to his house, and Father was allegedly shoplifting in their 

presence. Based on its investigation, DCFS concluded the 

referral was unfounded as to neglect and alleged physical abuse 

by Father, and inconclusive as to emotional abuse by either 

Father or Mother. Morris did not recall Father raising Mother’s 

parental alienation, and in any event, that was not her role to 

diagnose. However, Morris found “it was possible that the 

[children were] being asked to say things that were not true.” 

Specifically, Morris believed Mother asked the children to 

exaggerate complaints about living with Father, including that 

7 At the May 21, 2021 hearing, Mother’s counsel briefly 

cross-examined Father about his arrest for shoplifting in 2019 

and completion of a diversion program, but the family court 

curtailed the examination on the basis of relevance. Mother’s 

counsel also cross-examined Father about his assertion his actual 

parenting time was less than what the July 2018 custody order

provided. Father did not cross-examine Mother. 
10

there was “hitting” occurring in his home, they had a fear of 

Father, and they disliked the food and clothing at his home. 

Morris opined that a parent coaching a child could “in extreme 

situations rise to the level of a type of emotional abuse,” but she 

did not find the situation in 2019 to be extreme. Morris also felt 

Marsh, Brendan’s therapist, was “aligned or only spoke to 

[Mother] and the children.” However, Morris did not recall 

making a finding Marsh was biased against Father. On redirect 

examination, Marsh testified she had a specific recollection she 

reviewed the 2019 DCFS report for accuracy. Based on this 

admission, Father moved to admit the report into evidence. The 

court held the report was not admissible, finding that even if it 

had been authenticated, it constituted hearsay and Father had 

not established that it fell within the business record exception to 

the hearsay rule.

8

Richard testified she first visited with Brendan and Luke 

in Mother’s home on March 23, 2019. During the visit, the home 

was messy, and there was a strong odor of animal urine. 

Brendan and Luke were shy and unwilling to speak with her. 

They whispered to Mother, and “Brendan was holding on to his 

mom pretty tightly.” Richard took Mother aside and expressed 

concern that Mother was speaking negatively about Father in the 

boys’ presence. Mother was defensive and responded that Father 

was a thief and a criminal. Asked if she saw signs of emotional 

distress in the boys, Richard responded, “Based on the children 

not being comfortable talking to me and also the negative 

comments made in front of the children, I did express my concern 

8 Although the family court advised Father he could 

potentially still use the report to refresh Morris’s recollection, 

Father did not attempt to do so.
11

to the mother.” In the course of her investigation, Richard was 

also concerned that Brendan spoke with Mother excessively 

during visitation with Father, sometimes calling Mother multiple 

times, and Mother was interfering with Father’s custodial time. 

She observed anxiety in Brendan (but not Luke), and she 

believed Brendan was making inaccurate statements to social 

workers under Mother’s influence. Richard also spoke to Marsh 

and found she “had a negative feeling about the father” and 

“failed to engage him in the therapeutic setting.” Further, Marsh

was sharing with Mother information obtained in therapy 

sessions with Brendan. However, Richard did not have concerns 

regarding the children’s safety in either Mother’s or Father’s 

home; she did not find physical abuse in either home; and as to 

Mother, “the emotional abuse did not rise to the level of 

intervention. Therefore, it was referred to the therapist and 

deemed unfounded.” Richard recommended Father and Brendan 

seek joint counseling, and Mother was receptive to the idea. 

Father testified that Mother continued to alienate the 

children from him. During Mother’s custodial time, Brendan 

would not participate in calls with Father “99 percent” of the 

time, and Father could see Mother hovering over the boys during

video calls. Mother also persisted in furnishing the boys with 

clothing and food for their visits with him. 

Mother testified Father had access to both boys without her 

interference whenever he called, although sometimes Brendan 

would be short with Father of his own accord. Mother did not 

monitor the boys’ calls with Father, although she would 

sometimes hear the calls when Father called while they were in 

Mother’s car. Mother acknowledged Brendan brought his own 

clothes to visits with Father. Mother was not involved in 

Brendan’s packing and felt Brendan was “old enough to do what 
12

he needs to do. . . , whatever he wants to bring.” Similarly, 

Brendan packed himself snacks without Mother’s involvement. 

Although it was then summer vacation and Father had the boys 

on alternating weeks, Father often brought Brendan to Mother’s 

house for a few hours during Father’s custodial time while Luke 

was at his sports practice, because the parents agreed Brendan 

should not sit on the sidelines in the heat while Luke practiced. 

The family court questioned Mother about how Brendan

was doing. Mother stated Brendan was doing very well in 

therapy. She believed his anxiety had lessened and he was faring

better because he was able to see Mother occasionally during his 

weeks with Father, in contrast to the previous summer when 

Brendan struggled with weeklong visits. Father agreed with 

Mother that “since this year, it’s been better.” The court also 

asked Mother if she wanted to address Richard’s testimony. 

Mother conceded her house was not perfectly tidy during 

Richard’s March 2019 visit, but the house was clean and stocked 

with food, and there had never been any complaints about the 

children being dirty. Mother testified she did not limit Father’s 

access to the boys during her custodial time, adding, “They could 

call their dad any time. I don’t limit that. I encourage them to 

have a relationship with [Father].” 

D. The Family Court’s Order Denying the RFO

After the conclusion of testimony and closing arguments, 

the family court announced its findings from the bench.

9 The 

court found Father failed to show changed circumstances 

concerning parental alienation, explaining, “[Father] not only 

continues to have the parental time that was allocated to him 

9 Father withdrew his request for a statement of decision. 
13

under [the July 2018 custody order], but he also has telephonic 

contact with the children. To the extent that he feels that 

Brendan, who’s now 10, does not want to have the full range of 

that contact for some of those calls, . . . he hasn’t demonstrated 

that that’s [Mother’s] doing.” The only deviation from the 

custody order had been Brendan’s visits with Mother during 

Luke’s summer sports practice, and both parents supported this. 

The court also found Father’s testimony that Mother hovered 

over the boys during video calls was “not credible,” and Father in 

any event did not present evidence Mother was an “active 

participant and trying to control the nature of the 

communication, or telling the kids to get off.” The court credited 

Mother’s testimony she was not sending food or clothes with 

Brendan, and instead Brendan was packing his own bag. The 

court found Father’ testimony he had virtually no one-on-one 

time with Brendan to be valid but noted this had been a 

recurring feature in the case not caused by Mother, and Mother 

was supportive of increased time between the two. The court 

credited the social workers’ testimony and expressed concern 

about the condition of Mother’s home, but it found the testimony 

did not demonstrate parental alienation. 

The family court also found Father did not meet his burden 

to show changed circumstances with respect to Mother’s violation 

of the July 2018 custody order. The court found Brendan’s 

refusal to go with Father in December 2020 was not Mother’s 

fault, and Mother credibly testified in her declaration opposing 

the RFO that she had not denied Father access to the children’s 

health insurance and social security information. Likewise,

Father did not demonstrate he was not a parental contact with 

the children’s school. 
14

The family court found, “There have been issues that have 

arisen since the 2018 orders that the court does find are 

considerable. One was [Father’s] arrest and the investigation 

that stemmed from that. Another are the concerns that were 

raised to the court about Brendan’s health and welfare with 

respect to what he was going through and potentially still going 

through . . . . [T]hose things are significant circumstances.” 

However, the court concluded these circumstances did not 

constitute changed circumstances supporting joint custody for 

Father. Rather the court recommended (but did not order) 

conjoint therapy for Father and Brendan with an independent 

therapist. On August 6, 2021 the court issued a minute order 

with findings consistent with its ruling from the bench. 

Father timely appealed.10

10 In his opening brief, Father purports to seek review of the 

family court’s August 24, 2021 order striking his request to 

disqualify Judge Dordi under Code of Civil Procedure 

section 170.1. Father’s notice of appeal did not identify the 

August 24, 2021 order, and the issue is therefore outside the 

scope of our review. (See Conservatorship of Edde (2009) 

173 Cal.App.4th 883, 889-890 [appellate court’s “analysis is 

limited only to review of the order” identified in the notice of 

appeal]; Soldate v. Fidelity National Financial, Inc. (1998) 

62 Cal.App.4th 1069, 1073 [separately appealable order “is not 

reviewable on appeal, unless [the order] is expressly specified in a 

notice of appeal”].) In addition, the exclusive means for review of 

a determination on the disqualification of a judge is by petition 

for writ of mandate in accordance with Code of Civil Procedure 

section 170.3, subdivision (d), not an appeal from the order. (See 

Curle v. Superior Court (2001) 24 Cal.4th 1057, 1059.) 

 Father also purports in his reply brief to seek review of the 

family court’s August 16 and September 20, 2022 orders denying 
15

DISCUSSION

A. Legal Standard for Custody Modification

“Under California’s statutory scheme governing child 

custody and visitation determinations, the overarching concern is 

the best interest of the child.” (Montenegro v. Diaz (2001) 

26 Cal.4th 249, 255 (Montenegro).) In determining the best 

interest of the child, the court must consider “all relevant factors, 

including the child’s health, safety, and welfare, any history of 

abuse by one parent against any child or the other parent, and 

the nature and amount of the child’s contact with the parents.” 

(In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956

(Brown & Yana).)

“Once the trial court has entered a final or permanent 

custody order reflecting that a particular custodial arrangement 

is in the best interest of the child, ‘the paramount need for 

continuity and stability in custody arrangements—and the harm 

that may result from disruption of established patterns of care 

and emotional bonds with the primary caretaker—weigh heavily 

in favor of maintaining’ that custody arrangement. [Citation.] In 

recognition of this policy concern, we have articulated a variation 

on the best interest standard, known as the changed 

circumstance rule, that the trial court must apply when a parent 

seeks modification of a final judicial custody determination.”

(Brown & Yana, supra, 37 Cal.4th at p. 956.) Under the changed 

circumstance rule, “a party seeking to modify a permanent 

his subsequent requests for modification of custody. These orders 

are not encompassed within Father’s notice of appeal and are not 

properly before us. (Conservatorship of Edde, supra, 173 

Cal.App.4th at pp. 889-890.)
16

custody order can do so only if he or she demonstrates a 

significant change of circumstances justifying a modification. 

[Citation.] . . . [A court] 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.” (Montenegro, supra, 26 Cal.4th at p. 256; see In re 

Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089-1090

[family court’s modification of custody order from joint to sole 

custody was abuse of discretion because of lack of evidence of 

changed circumstances].)

Generally, “[w]e review custody and visitation orders for an 

abuse of discretion, and apply the substantial evidence standard 

to the court’s factual findings.” (In re Marriage of Fajota (2014) 

230 Cal.App.4th 1487, 1497; see In re Marriage of Burgess (1996) 

13 Cal.4th 25, 32 [noting abuse of discretion standard applies to 

review of custody and visitation orders, but applying substantial 

evidence standard to factual determinations supporting 

relocation order].) “Under this test, we must uphold the trial 

court ‘ruling if it is correct on any basis, regardless of whether 

such basis was actually invoked.’” (Montenegro, supra, 

26 Cal.4th at p. 255.) 

However, a different standard applies where, as here, the 

appellant had the burden of proof in the family court. “‘In the 

case where the trier of fact has expressly or implicitly concluded 

that the party with the burden of proof did not carry the burden 

and that party appeals, it is misleading to characterize the 

failure-of-proof issue as whether substantial evidence supports 

the judgment.’ [Citation.] ‘Thus, where the issue on appeal turns 

on a failure of proof at trial, the question for a reviewing court 

becomes whether the evidence compels a finding in favor of the 

appellant as a matter of law.’” (Juen v. Alain Pinel Realtors, Inc. 
17

(2019) 32 Cal.App.5th 972, 978-979 (Juen); accord, Dreyer’s 

Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 

828, 838 (Dreyer’s); In re I.W. (2009) 180 Cal.App.4th 1517, 1528, 

disapproved on another ground in Conservatorship of O.B. (2020) 

9 Cal.5th 989, 1010, fn. 7.)

“‘Specifically, the question becomes whether the appellant’s 

evidence was (1) “uncontradicted and unimpeached” and (2) “of 

such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.”’” 

(Juen, supra, 32 Cal.App.5th at p. 979; accord, Glovis America, 

Inc. v. County of Ventura (2018) 28 Cal.App.5th 62, 71; Dreyer’s, 

supra, 218 Cal.App.4th at p. 838.) “‘[W]here . . . the judgment is 

against the party who has the burden of proof, it is almost 

impossible for him to prevail on appeal by arguing the evidence 

compels a judgment in his favor.’” (Atkins v. City of Los Angeles

(2017) 8 Cal.App.5th 696, 734; accord, Bookout v. State of 

California ex rel. Dept. of Transportation (2010) 

186 Cal.App.4th 1478, 1486.) “That is because unless the trial 

court makes specific findings of fact in favor of the losing [party], 

we presume the trial court found the [losing party’s] evidence

lacks sufficient weight and credibility to carry the burden of 

proof. [Citations.] We have no power on appeal to judge the 

credibility of witnesses or to reweigh the evidence.” (Bookout, at 

p. 1486.)

B. The Family Court Did Not Abuse Its Discretion in 

Excluding Father’s Hearsay Evidence

Father contends the family court erred in excluding the 

DCFS reports and other exhibits attached to his declaration. We 

review the family court’s evidentiary rulings, which principally 

involved the application of the hearsay rule, for an abuse of 
18

discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725 [“an 

appellate court applies the abuse of discretion standard of review 

to any ruling by a trial court on the admissibility of evidence, 

including one that turns on the hearsay nature of the evidence in 

question”]; accord, People v. Yates (2018) 25 Cal.App.5th 474, 484; 

see Zanone v. City of Whittier (2008) 162 Cal.App.4th 174, 190, 

fn. 21 [“We review the exclusion of hearsay evidence on the 

ground it does not qualify for admission as a business record for 

abuse of discretion.”].) 

With respect to the DCFS reports, the family court found 

Father failed to establish the reports were admissible under the 

business records exception to the hearsay rule.11 The Evidence 

Code provides two exceptions for agency reports relevant here. 

Evidence Code section 1280, the official records exception, 

provides, “Evidence of a writing made as a record of an act, 

condition, or event is not made inadmissible by the hearsay rule

when offered in any civil or criminal proceeding to prove the act,

condition, or event if all of the following applies: [¶] (a) The 

writing was made by and within the scope of duty of a public 

employee. [¶] (b) The writing was made at or near the time of the 

act, condition, or event. [¶] (c) The sources of information and 

method and time of preparation were such as to indicate its 

11 On appeal, Father does not contend the DCFS reports were 

business records, nor does he argue for the application of another 

hearsay exception. Rather, he contends the reports were 

admissible because the “the writers of the DCFS reports were 

witnesses during the hearing, subject to cross examination.” To 

the extent Father is arguing the reports were admissible as prior 

inconsistent statements made by Morris and Richard (Evid. Code, 

§ 1235), he does not identify any inconsistency between the 

witnesses’ trial testimony and their statements in the reports. 
19

trustworthiness.” Evidence Code section 1271, the business 

records exception, sets forth similar requirements for records 

made in the regular course of a business, except it also requires a 

custodian or other qualified witness to testify to the existence of 

the records and mode of preparation. (See Evid. Code, § 1271, 

subd. (c).) 

Father did not establish the foundational requirements for 

admissibility of the DCFS reports under Evidence Code 

section 1280 or section 1271 in either his declaration or at the 

evidentiary hearing. At most, Morris testified she remembered 

the 2019 DCFS report and would have reviewed the report for 

accuracy at the time of preparing it. But the document is not a 

single incident report; instead, it contains approximately two 

dozen dated entry logs. Further, it appears Megerdichian, not 

Morris, authored most of the entries. There was no testimony 

about how these entries were created. Moreover, there was no 

testimony regarding the creation of the 2020 DCFS report, which 

includes about 20 entries apparently authored by Richard. The 

court did not abuse its discretion in excluding the reports based 

on Father’s failure to lay a foundation for the business records 

exception. (See People v. Hovarter (2008) 44 Cal.4th 983, 1011 

[“A trial court has broad discretion in determining whether a 

sufficient foundation has been laid to qualify evidence as a 

business record.”].) 

Even if Father had established the DCFS reports were 

official records or business records, the family court did not abuse 

its discretion in excluding them. As this court explained in 

Zanone v. City of Whittier, supra, 162 Cal.App.4th at page 192 in 

affirming the trial court’s exclusion of a government agency’s 

records of employee exit interviews, “[E]ven if they had been 

established as business records, [the records] themselves 
20

contained hearsay statements regarding the employees’ reasons 

for leaving for which no exception had been established. 

[Citations.] . . . A summary of an inadmissible hearsay 

statement cannot be made admissible merely because it is 

repeated in a valid business record.” (Accord, Alvarez v. Jacmar 

Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1205 [“[w]hen 

multiple hearsay is offered, an exception for each level of hearsay 

must be found in order for the evidence to be admissible”]; see 

People v. Sanchez (2016) 63 Cal.4th 665, 675 [“An emergency 

room report, for example, may record the observations made by 

the writer, along with statements made by the patient. If offered 

for its truth, the report itself is a hearsay statement made by the 

person who wrote it. Statements of others, related by the report 

writer, are a second level of hearsay. Multiple hearsay may not 

be admitted unless there is an exception for each level.”].) 

The DCFS reports are replete with multiple levels of 

hearsay, and Father did not attempt to isolate the statements or 

to establish a hearsay exception at each level. For example, a 

March 21, 2019 entry authored by Megerdichian states, “CSW 

Megerdichian contacted [case social worker] Gorgi about the 

family’s past referral. . . . [Gorgi] said she had spent time with 

the father and felt that [he] was a caring parent and did not 

observe any alarming matter.” Father quoted the foregoing 

statement in his declaration and offered the reports for the truth 

of the matters asserted by Gorgi and others, yet he failed to 

establish any ground for admission of the embedded hearsay. 

In addition to the DCFS reports, Father challenges the 

exclusion of emails he received from Brendan’s therapists, 

including a September 28, 2020 email from Marsh stating 

Brendan was at risk for self-harm, and a March 17, 2017 email 

from Brendan’s former therapist Victoria Frantz stating, “I 
21

totally believe that you should have 50% custody.” Father 

contends the emails are admissible because “[Father] is the 

custodian of records of his e-mails.”12 But the emails were 

properly excluded not because of a lack of authentication but 

because they contain hearsay. To the extent Father is relying on 

the business records exception under Evidence Code section 1271, 

there was no testimony that the emails from the therapists were 

made in the regular course of a business or that they were made 

at or near the time of the act, condition, or event. We also note 

the Frantz email was not relevant in that it predated both the 

August 2017 stipulated judgment and the July 2018 custody 

order. 

The family court likewise did not abuse its discretion in 

excluding the 2015 declarations of Father’s older children 

Anthony and Isabella and Father’s neighbor John Storjev 

attesting to Father’s positive parenting in 2011 (when Brendan 

and Luke were babies). These declarations are hearsay and not 

relevant to whether there were changed circumstances after the 

July 2018 custody order. (See Perry v. Bakewell Hawthorne, LLC

12 Father also contends the family court improperly excluded 

a September 29, 2020 email from Pedrick forwarding Marsh’s 

September 28 email. However, the record does not reflect that 

the court excluded the email at the evidentiary hearing. Pedrick 

wrote, “Brendan has been exhibiting harmful ideation. 

Ms. Marsh needs to discuss the concerns and engage you with a 

safety plan while we address positive intervention.” (Underlining 

omitted.) The court allowed Father to examine Pedrick about the 

email and then ruled, “To the extent that there’s another email,

there’s one by Ms. Marsh. So that would be hearsay and we don’t 

have Ms. Marsh here to testify.” 
22

(2017) 2 Cal.5th 536, 541 [“Declarations themselves are not 

ordinarily admissible because they are hearsay.”].)

Father also contends the family court erred in excluding all 

evidence Mother violated the July 2018 custody order. But the 

court admitted most of Father’s exhibits on this subject, including 

Mother’s communications, and it did not abuse its discretion in 

excluding the others. The court excluded the December 29, 2020 

LASD incident report, in which the reporting officer described an 

interview with Luke about Brendan’s refusal to get into Father’s 

vehicle. The report contained two levels of hearsay, and Father 

did not establish the official records exception. The court also 

excluded a printout of photographs designated as “[r]ecently 

[d]eleted” on Father’s electronic devices. Father authenticated 

the photographs in his declaration. However, the photographs 

had no relevance absent Father’s hearsay statement that 

“Brendan stated his mother instructed him to delete any photos 

that included nightly Facetime calls that indicate I was not able 

to speak with him during his mother[’]s custodial timeshare.” 

Finally, the court excluded attendance reports from the boys’ 

elementary school listing Mother as their contact. Father did not 

establish a foundation for admission of the report, and in any 

event, as the court explained to Father, “The printout that you 

have from the school doesn’t verify that you’re not a contact. It 

doesn’t verify that there’s somebody other than her who’s a 

contact.” 

C. The Admissible Evidence Does Not Compel a Finding a 

Custody Modification Would Be in the Boys’ Best Interests

Father contends substantial evidence supported 

modification of the July 2018 custody order to award him joint 

legal and physical custody of the boys. Because the family court 
23

found Father failed to carry his burden to show changed 

circumstances supported modification of the 2018 custody order,

the question before us is whether the evidence compels a finding 

in Father’s favor as a matter of law. (See Juen, supra, 32 

Cal.App.5th at pp. 978-979; Dreyer’s, supra, 218 Cal.App.4th at p.

838.) It does not. 

Father argued there were two changed circumstances: 

Mother’s efforts to alienate the boys from Father (especially 

Brendan), and Mother’s repeated violations of the custody 

order.13 With respect to parental alienation, the family court 

found credible Mother’s testimony that she did not interfere with 

the boys’ visits; specifically, she did not monitor the boys’ calls 

and she did not direct Brendan to bring food or clothing to 

Father’s house. Nor was there evidence she restricted Brendan 

from calling or spending time with Father. The court credited 

Father’s testimony he had virtually no one-on-one time with 

Brendan, but the court found this was not attributable to 

Mother’s conduct. The DCFS social workers—whom the court 

found credible—testified that Mother in 2019 engaged in 

concerning behaviors such as speaking negatively of Father in 

front of the children, coaching the children, and maintaining 

excessive contact with Brendan. However, Morris testified the 

social workers were not qualified to diagnose parental alienation, 

and both Morris and Richard testified the allegation Mother 

emotionally abused the boys was “unfounded.” Moreover, Father 

did not introduce any admissible evidence the boys suffered from 

13 Father argued there was a third changed circumstance—

that Mother committed emotional child abuse—but the argument 

was based on his contention Mother engaged in parental 

alienation, which constituted child abuse. 
24

either parental alienation or emotional abuse—he did not call 

any expert witnesses or treating therapists, instead relying solely 

on his own unqualified opinion based on texts and articles he 

characterized as “learned treatises” that were not in evidence. 

Father also failed to show Mother violated the July 2018 

custody order. There was no admissible evidence Brendan’s 

refusal to go from Mother’s car into Father’s car during a 

scheduled hand-off on December 29, 2020 was due to Mother’s 

conduct, and Mother’s rejection of Father’s demand to deliver the 

boys for a Sunday overnight visit on January 10, 2021 was based 

on a reasonable interpretation of the custody order (that she was 

entitled to custody of the boys as part of her winter vacation 

custody time). With respect to Mother’s other alleged custody 

violations, the family court found Mother credibly testified, 

contrary to Father’s allegations, that she did not deny Father 

access to the boys’ health insurance, social security cards, and 

information pertaining to their schooling. 

Father is correct there was undisputed evidence Brendan’s 

mental and emotional well-being deteriorated after the July 2018 

custody order, and in late 2020 Brendan expressed harmful 

ideation. Further, Brendan’s therapist believed there was an 

acute threat of self-harm. This was certainly a significant 

changed circumstance. However, Father failed to present any 

evidence showing that an award of joint physical and legal 

custody to Father would benefit Brendan. (See Montenegro, 

supra, 26 Cal.4th at p. 256 [the court “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”].) Specifically, Father did not present 

any evidence, expert or otherwise, as to the underlying nature of 

Brendan’s struggles or the best practices to address them. 
25

Indeed, Father agreed with Mother’s assessment that breaking 

up Brendan’s week-long summer visits with Father in 2021 with 

occasional afternoon visits with Mother improved Brendan’s 

emotional well-being compared to the summer of 2020. 

D. Father Has Not Shown Additional Errors by the Family 

Court 

Father’s additional contentions are not persuasive. First, 

Father contends the family court’s denial of the RFO is 

inconsistent with our observation in Stacy V. v. Frank B., supra, 

No. B293010 that “Father can prospectively seek to restore joint 

custody based on changed circumstances, including cessation of 

the abusive messages, reduction in parental conflict, control of 

his ‘obsessive fixation’ with the boys’ athletic grooming, and 

compliance with the court’s orders. Further, even without a 

change of custody, Father could in the future present evidence 

that a modification of the visitation schedule (for example, by 

restoring a weekend night) is in the boys’ best interest.” There is 

no inconsistency. In his RFO, Father did not argue he moderated 

the behaviors that led to his loss of custody, nor did he request a 

limited modification of the vacation schedule. Although we noted 

in our initial opinion that Father might in the future regain joint 

custody of the boys, the changed circumstances rule sets a high 

bar in recognition of “‘the paramount need for continuity and 

stability in custody arrangements—and the harm that may result 

from disruption of established patterns of care and emotional 

bonds with the primary caretaker. . . .’” (Brown & Yana, supra, 

37 Cal.4th at p. 956.) 

Second, Father argues there is a rebuttable presumption he 

was entitled to joint custody under Family Code section 3044, 

subdivision (a), which provides, “Upon a finding by the court that 
26

a party seeking custody of a child has perpetrated domestic 

violence within the previous five years . . . against the child or 

the child’s siblings. . ., there is a rebuttable presumption that an 

award of sole or joint physical or legal custody of a child to a 

person who has perpetrated domestic violence is detrimental to 

the best interest of the child. . . .” This provision does not apply 

because there has been no finding Mother perpetrated domestic 

violence against either of the boys. To the contrary, after 

investigating referrals in 2019 and 2020, DCFS found the 

allegations of Mother’s physical or emotional abuse to be 

unfounded. 

Third, Father argues the family court took advantage of his 

self-represented status and “took over question[ing] of the DCFS 

witnesses in effect suppressing evidence.” However, there is no 

rule that prevents a judge from questioning a witness. Further, 

while it is true the family court posed numerous questions to the 

DCFS witnesses, particularly during cross-examination, the court 

did not restrict Father’s examination, and its questions did not 

have the effect of “suppressing evidence.” To the contrary, many 

of the court’s questions, especially during Father’s direct 

examination, aided Father by reframing questions that were 

confusing or objectionable or elicited unclear responses. Our 

review of the hearing transcript shows the court to have been 

very patient with Father and to have taken pains to ensure a full 

and fair hearing. 

Finally, Father contends the family court erred in denying 

his request to examine Pedrick (the boys’ attorney) at the 

evidentiary hearing. The court advised Father that Pedrick was 

neither a party nor a percipient witness, and the court invited 

Father to make an offer of proof. Father stated only that he 

wanted to examine Pedrick about Pedrick’s September 28, 2020 
27

email stating Brendan had been exhibiting harmful ideation. 

The court allowed Father to question Pedrick in order to 

authenticate the email and the attached email from Marsh. On 

appeal, Father contends Pedrick was a percipient witness 

because he had “written his opinion of the proceedings in a 

responsive declaration” opposing the RFO. However, although 

Pedrick filed an opposition as counsel for Brendan and Luke on a 

mandatory family law form styled as a “responsive declaration to 

request for order” (Judicial Council FL-320), Pedrick’s declaration 

asserted a legal position on behalf of the boys and did not contain 

factual testimony.14 The court therefore did not abuse its 

discretion in refusing to allow Father to question Pedrick other 

than about the emails.

14 Pedrick wrote in opposition to the RFO, “Legal custody has 

been adjudicated over the course of numerous hearings, trials, 

and appeals. [Father] has failed to introduce any credible, 

admissible evidence supporting his claim that there has been a 

significant change in circumstances warranting a modification of 

the current, operative child custody orders.”
28

DISPOSITION

We affirm the family court’s August 6, 2021 order denying 

the RFO. Mother is entitled to recover her costs on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.