Filed 9/7/16 Smith v. Villafana CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

EARL SMITH ,
Plaintiff and Respondent
,

v.

REBEKAH VI LLAFA Ñ A ,
Defendant and Appellant

. B 2 6 4476
(Los Angeles County Super. Ct. No. PF 004106 )

APPEAL from order of the Superior Court of Los Angeles County, Dianna
Gould

- Saltman
, Judge. Affirmed

. Rebekah Villafa ña , in pro. per., for Defendant and Appellant. Earl Smith, in pro. per., for Plaintiff and Respondent.

________________________________2 INTRODUCTION The parties are before us for a second time. In the prior case , we affirmed an order awarding Earl Smith (Father) sol e legal and physical custody of their minor daughter (the child ) , and granting Rebekah Villafaña (Mother) monitored visita tion rights every Friday and Sun day morning s

. (See E. S

. v

. R. V

. (May 16, 2011,
B223635 ) [unpub. opn.]. ) Subsequently, Mother filed a request to modify the
order . A rgu ing that Father had frustrated her visitation rights , Mother sought a full
reversal of the order . Following a n evidentiary hearing, the trial court issued an order maintaining Father’s status as the sole legal and primar y physical custodian, but modifying the visitation procedures to address Mother’s concerns. Mother
contends th e trial court erred in continuing monitored visits. Finding no abuse of discretion, we affirm.
FACTUAL BACKGROUND AND P ROCEDURAL HISTORY
On Fe bruary 16, 2010, the trial court ( Commissioner Patricia M. Ito) issued an order awarding Father sole legal and physical custody of the child . Mother was granted visitation rights every Friday and Sunday, from 9:00 a.m. until 1:00 p.m

. Each of Mother’s vi sits was required to be monitored by “a professional monitor or a responsible a dult agreed upon by the parties

. ” The visits were to be h eld at “a facility such as was previously used in the past, the cost of which is to be borne by [ Mo ther ]

. ” On May 26, 2011, following Mother’s appeal, we affirmed the order. On April 17, 2014, Mother filed a request for an order modifying the February 16, 2010 order

. She sought sole legal and physical custody of the child, and an order granting Father monitored visits every Sunday and every Father’s Day, from 9:00 a.m. to 1:00 p.m., as well as Thanksgiving Day and Christmas Day, from 9:00 a.m. to 1:00 p.m., in alternating years. In support of her request, Mother
submitted a declaration stating that Father ha d refused t o provide her with recent3

pictures of the child or update her regarding th e child’s health and education. She argued that Father had failed to provide the child with a stable and consistent life,

n oting that he ha d gone fro m being employe d

-- whe n the cas e began

-- to unemployed as a result of a disability, to being a freelance music teacher. In
contrast, Mother noted that she ha d lived in the same residence for the past six

years, had paid 100 percent of the child’s medical insurance for the past five ye ars, and had maintained her employment with the Los Angeles Unified School District
since 2006.
Mother also de tailed how F ather allegedly had frustrated h e r vi sitat ion rights. According to Mother, beginning in 2011, as a result of changes in her work

sc hedule, she asked Father to change her Friday visit to another day in the week,
but Father refused. Father also rejected and terminated the service s of a professional monitor Mother had employed (Tania Spivak) , although the February 16, 2010 order did not authorize him to do so. He arbitrarily deemed certain
l ocation s inconvenient and refused to conduct the custodial exchange at those locations. Finally, Father refused to allow Mother’s parents to be present during
the visits

. A. Evidentiary H

earing on Mother’s P etition to M odify O rder The trial court (Judge Dia nna Gould

- Saltman) held a hearing on Mother’s request for modification of the February 16, 2010 custody and visitation order

. Over several days, the court he ard testimony and oral argument

. Min or’s counsel advised the court that Commissioner Ito originally implemented monitoring due to (1) “grave concerns” about Mother’s mental health based on her suicidal text

mess ages to Father
, and (2) Mother’s unwillingness to “co

- parent with the Father”

-- as indicated, inter alia, by statements in court that she wished the child was in
foster care rather than with Father.4

Mother testified she was seeking sole legal and physical custody because
Father ha d interfered with her custodial visits over the past five years. In response to Mother’s argument that Father did not provide stability for the minor child because he was unemployed, the court observed that unemploy m e nt “ has nothing to do with stability. ” Spivak testified that she had provided monitoring services for Mother from March to April 2013 and from August to Nove mber 2013. She stated that Father
restrict ed the locations of the visits and had denied Mother court

- ordered visits on
at least two occasions. On cross

- examination, Spivak admitted that Father terminated her monitoring services because he was disappointed that on two occasions, she was not within close proximity to Mother and the child. Father opposed Mother’s request for sole legal and physical custody. He
denied en gaging in a “campa ign” to withhold visitation between Mother and the
child. He asserted that he had tried to accommodate Mother’s requests. For example, i n response to Mother’s request to chang e her court

- ordered vi sits from Friday to Saturday, Father told Mot her that it would be more appropriate to change
th at weekday visit to another weekday, such as Wednesday

. Father also recalled being late for court

- ordered visits only three times over the past five or six years. Father testified about a specific court

- ordered vis it. Mother had changed the
visit site from a nearby location to a loc ation 40 minutes away. Father objected to the new location because it would preclude him from arriving promptly at the location to resolve any issues involving the child. After Father objected, Mother
cancelled the visit. Subsequently
, during the scheduling of other visits, Father proposed alternate sites located nearby, but Mother refused. Father also as serted that he had no objection to Mother’s parents being present at the visits, only to them being monitors. He explained that Commissioner Ito had stated that5

Mother’s parents were not appropriate monitors , and had p recluded the m from acting as monitors

. 1
The court also heard about an i ncident arising from a recent court

- ordered Sunday visit. For the November 2, 2014 visit, Spivak scheduled the pickup of the
child at Father’s house. After Father told Spivak that the pickup location was inappropriate
, S pivak cancelled the visit. Following the cancellation , Mother and
the materna l grandmother went to the Van Nuys police station, where Mother provided the police with a copy of the February 16, 2010 order showing any responsible adult could act as a monitor. She did not mention Commissioner Ito’s
oral order precluding the maternal grandmother from acting as a monitor

. The police advised Mother and the maternal grandmother to go to Father’s house and
knock on his door. They did so. After getting another occupant to let them pas t the locked gate, Mother and the maternal grandmother started pounding on Father’s door and yell ing for the child to be brought out. As time went by, they became increasing agitated and loud. Father had the child sit in the bathroom with the radio on so she could not hear the yelling. After 30 minutes, Mo ther and the maternal grandmother left. 2

1 Minor’s counsel confirmed that Commissioner Ito had barred Mother’s parents from serving as mon itors. The maternal grandmother admitted being present at a 2010 hearing where “the judge said [she] could not be the monitor.”

2 At a hearing on Father’s request for a restraining order arising from this incident, the court (Judge Gould

- Saltman) noted that an existing order required Mother to have a monitor during visits with the child
, and that the maternal grandmother could not act as a monitor. It found that Mother intentionally “made an attempt to circumvent [the existing order] by providing only partial information to the police, and then relied on the police based on the partial information you gave them.” The court ordered Mother to stay 100 yards away from Father’s house.6

Marcela Perez testified she provided monitoring services for Mother from
March 10 to J une 20, 2010. During this period, Father cancelled only one visit, which was due to the child’s illness. Perez testified tha t Mother terminated her services on June 20, after Moth er had an outburst and accused Perez of “participating in the visit.” Perez testified she feared for her safety. On cross

examination, Perez acknowledged writing a critical incident report about Fath er related to his failure to pay her fees. On redirec t, Perez stated that she amicably

res olved her issues with Father. Ariane Dora Fleiderman testified she provided monitoring services for Mother for approximately six months in 2011. Fleiderman state d that during her last monitoring date, she terminated the visit early because Mother became increasing irritated during the visit, demanded that Fleiderman sit in a particular place, and stated that she would stand in front of Fleiderman holding the child for the remainder of the visit. Fleiderman stated she never felt threatened by Father. During closing argument , the court asked Father’s counsel to address why
monitored visits should continue now that the minor child was older and could speak

. After counsel argued that Mother still evinced hostility to Father, the court stated: “Other than thinking that the child is so delicate she can’t afford to hear bad things about Dad, I am not hearing any reason for monitoring yet, not in the evidence that’s b een presented and the evidence is closed.” Counsel responded by directing the court’s attention to testimony about the recent November 2, 2014 incident, which cou nsel argued showed that monitoring should be maintained due to Mother’s continued erratic beh avior and her inability to place the child’s interest
before her own

.7

B. T he T rial C ourt’s F indings and O rder After hearing argument and considering the evidence, th e trial court made findings on the record. It found that both parents had certain strengths and weakness. “The evidence demonstrates Mother to be intelligent, articulate. She is resourceful. And clearly loves her daughter.” However, the court found, Mothe r demonstrated “continued anger at Dad” and a “prismic view of facts,” i.e., s he “eliminate [ s ] some relevant facts or eliminates or changes the sequence of events to correspond with her view of the world.” The court express ed concern over Mother’s recent behavior
, including her long absences from visiting the child (from April to A ugust 2013) and the more recent November 2014 incident. The

court concluded that “Mom’s attem p t to get into Dad’s apartment building and her providing an outdated custody order to the po lice as the basis for her justification
for the i n s truction s she then received from the police” indicate d that Mother “manipulated the situation in a way that is inconsistent with objective reality.” The court noted its concern that “Mom believes those who disagree with her are her enemies or incompetent or are in [a] cons piracy against her.” As to Father, the court fou n d that “the evidence shows that Dad is smart; that Dad has been consistent; that Dad has been child focused.” However, Dad “ has lacked dependable transportation ,” “still has some anger at Mom,” and has

“ r estrict [ ed ] Mom’s access to their daughter.” As to the la st finding, the court explained that although Father ha d acted as “ a ga t e keeper in a restrictive manner,”
he ha d not engaged in any “custodial interference.” On March 24, 2015, the trial court iss ued an order modifying the February
16 , 2010 custody and visitation order. The court ruled that Father would continue
to have sole legal custody and primary physical custody of the child

. Father was ordered to inform Mother in advance of all nonemergency decisions relating to the8

child’s health care, education
, or welfare. The court also ordered that both parents have reasonable access to the child’s school and to medical information from her
school or medical providers.
The court found it was not in t he best interest of the child to have
unmonitored visits with Mother. The court held that monitored vis i ts would continue under the following new terms. As to the selection of the monitor,
Mother could choose any professional mon i t or , and Father would ha ve 48 hours to complete the intake pro cess. Father would be able to veto or dis miss a professional monitor only through appeal to the trial court. Alternatively, Father could select a nonprofessional monitor. Mother’s parents were excluded from acting a s monitors. As to the allocation of professional monitoring costs, Father w ould be responsible for 10 percent of the fees, Mother for 90 percent . If either parent were late for a visit, any late fee charged by the professional monitor would be the

respon s i bility of the tardy parent

. Finally, no monitor would be required for school events open to all pa rents, such as recitals and gra duation ceremonies. Mother was granted increased visitation rights , and her parents were provided an opportunity to accomp any Mother during these visits

. 3 The court also
ordered that the custodial exchange take place at a designated McDonald’s

3 Mother was granted the right to visitation every second, fourth and fifth Saturday and Sunday of the month, from 9:00 a.m. to 6:00 p.m. In addition, she was granted visits on all single day weekday school holidays, from 9:00 a.m. to 6:00 p.m. These school holidays included: Martin Luther King’s Birthday
, President’s Da y , Lincoln’s Birthday
, Cesar Chavez Day
, Memorial Day
, Labor Day , Columbus Day
, and Veterans Day. D uring Spring Break, Mother was awarded additional visits each Monday and Wednesday, from 9:00 a.m. until 1:00 p.m. Each Christmas, she was awarded visits f rom 12:00 p.m. on December 24 through 9:00 a.m. on December 25. Mother was also awarded visitation on Easter Sunday in all odd numbered years, on the child’s birthday in all odd numbered years, and on Mother’s birthday every year.9

restaurant located in Van Nuys, California, or a mutually agreed upon location. It
further ordered that neither parent was to make, or allow others to make, derogatory comments about the absent pa rent within earshot of the child. On May 22, 2015, Mother timely noticed an appeal from the March 24, 2015 custody and visitation order.
DISCUSSION As an initial matter, we note that M oth er devotes much of her appel late opening brief to challenging the February 10, 2010 custody and visitation order. However, as noted, we previously considered Mother’s challenges to that order, and affirmed the order in the prior appeal. (See E. S

. v

. R. V

. , supra , B223635

. ) Thus, we consider only Mother’s challenges to the Ma rch 24, 2015 custody and
visitation order. Mother contends the trial court erred in denying her request for sole legal and physical custody of the child. We disagree. “ Once the tr ial court has entered a final or permanent custody order reflecting that a particular custodial arrangement
is in t he 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.” ( In re Marriage of Brown & Yan a (2006) 37 Cal.4th 947, 956; see In re Marriage of Burgess (1996 ) 13 Cal.4th 25, 32

- 33.) Put simply, “ a child should not be removed from 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 welfa re of the child that there be a change.”’” ( In re Marriage of Burgess , supra , at p. 38, quoting In re Marriage of Carney (1979) 24 Cal.3d 725, 730.) This rule places a weighty burden on the noncustodial parent seeking to10

persuade the court that a change in stable custody, lawfully acquired and maintained for a significant period, is in t he child’s best interest: “ Under the changed circumstance rule, custody modification is appropriate only if the parent

see king modification demonstrates ‘ a significant c h ange of circumstances

. ’” ( In re Marriage of Brown & Yana , supra , at p. 956; accord Burchard v. Garay (1986) 42 Cal.3d 531, 536.) We review the trial court’ s order denying modification of custody for abuse
of discretion. ( In re Marriage of Burgess , sup ra , 13 Cal.4th at p. 32; Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Under that standard, “ reversal is warranted only if there is no reasonable basis upon which the trial court could conclude that
its decision advanced the be st interests of the child. ” ( In re Marriage of Melville (200 4) 122 Cal.App.4th 601, 610.) “‘ An appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts. Only upon a

. . . showing of abuse of discretion will the order of the trial court in such matters be disturbed on appeal. Where minds may reasonabl y differ, it is the trial judge’ s discretion and not that of the appel late court which must control.’” ( In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1492 .) Mother contends there was a signif i cant change in circumstances, as Father
frustrated her visita t i on rights. The trial court, however, found that although Father acted as “a gatekeeper in a restrictive manner,” he did not engage in any “custodial
inte rference ” of Mother’s visitation rights. That finding is amply supported by the record. Father’s testimony indicated that he obj e cte d to distant visit sites (more
than 30 minutes away from his ho m e) in order to be able to arrive promptly to resolve any i ssues that might occur during the visits. Father also proposed
alternate dates and locations for the visits . As attested to by Perez and Fleiderman, Father had a good relationship with the professional monitors, except for the latest11

monitor, Spivak. He had a colorable reason for terminating Spivak’s services, as
she failed to stay in close proximity to the child during the visits to ensure proper monitoring. T he trial court also found Father to be a fit parent

-- smart, consistent,
and child

- focused. On this record, we find no abuse of discretion in the trial court’s refusal to reverse the prior custody order and to grant Mother sole legal and physical custody. Citing Read v. Read (1951) 103 Cal.App.2d 721, In re Marriage of Ciganovich (1976) 61 Cal .App.3d 289 ( Ciganovich ), and Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, Mother contends the trial court’s finding that Father acted as a gatekeeper compelled the court, as a matter of law, to modify the custody order. The cases cited are distinguis hable. As the trial court found, Father’s conduct did not rise to the level of “custodial interference” with Mother’s visitation rights, e.g., he did not move the child far away from Mother. ( Cf. Read
v. Read
, supra , at p. 723 [trial court erred in faili ng to consider that custodial parent’s move to a distant location would render it impractical for noncustodial parent to visit, as the move constituted “ a sufficient change in circumstances ”]; Ciganovich
, supra , at p. 294 [mother’s move to another state to frustrate father’s visitation right furnishe d “ ground for a motion to modify the decree which the court should consider as part of the array of circumstance s affecting custody and support”]; Mark T. v. Jamie Z.
, supra , at p. 1131 [mother’s proposed move t o another state, if made in bad faith, is a factor for the trial court to consider:

“‘ “ Conduct by a custodial parent designed to frustrate visitation and
communication may be grounds for changing custody ” ’”].)
Mother also contends the trial court erred i n denying her request to modify
the visitation order , arguing that frustration of her visitation rights was not in the
best interest of the child. ( See In re Marriage of Lucio (200 8) 161 Cal.App.4th12

1068, 1072 [v isitation order s may be modified based on t he best interest of the children without proof of the significant change of circumstan ces required to modify custody] ; accord, Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371,
1378

- 1382 [court erred in applying changed circumstance rule to request fo r change in visitation].) In the instant case, the trial court modified the prior
visitation order to address Mother’s concerns. Both parents were granted access to information about the child’s health care, education
, and general welfare. Father
could veto or dismiss a monitor only through an appeal to the trial court. Mother was granted increased visits
, and her parents were given an opportunity to attend
the visits. Mother contends the trial court should have discontinued monitoring
, arguing no evi dence suggests that she was a danger to the child

. Here, the trial
court found that it was not in the best interest of the child to have unmonitored
visits. An appellate court does not general ly interfere with a trial court’ s discretionary determination that a change in visitation is not in the best interest of the child; however, a discretionary visitation order may be reversed if the trial

court applied “ improper criteria or inco rrect legal assumptions

. . . . ” ( Mark T. v.
Jamie Z

. , supra , 194 Cal.App. 4th at pp. 1124

- 1125.) As the trial court reasonab ly concluded, Mother’s recent behavior supporte d continued monitor ing

. Specifically, Mother’s November 2014 attempt to conduct a visit with the child at
Father’s residence after the monitor had cancelled demonstrated that Mother ’s
view of f acts was inconsistent with objective reality. Although Mother knew that a
monitor was required to be present for her visits and that her parent could not act as a monitor, she provided incomplete information to the poli ce and then relied on the police instruction to justify her attempt to access Father’s building and visit the13

child without a court

- approved monitor . On this record, we find no abuse of discretion in the trial court’s maintenance of monitored visits.

DISPOSITION
The order is affirmed

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.