Filed 1/26/21 K.B. v. E.L. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

K.B.,

Plaintiff and Respondent,

v.

E.L.,

Defendant and Appellant.

 B297820

 (Los Angeles County

 Super. Ct. No. BF034950)

APPEAL from an order of the Superior Court of 

Los Angeles County, Lawrence P. Riff, Judge. Affirmed.

Law Office of Earl Robertson III and Earl Robertson III for

Defendant and Appellant.

Michelman & Robinson and Reuben A. Ginsburg for 

Plaintiff and Respondent.

______________________________
2

Appellant E.L. (father) appeals from a postjudgment order 

denying his request to modify custody and requiring him to 

complete reunification counseling before resuming visitation with 

his son (minor, born 2007). Finding no abuse of the family court’s 

discretion, we affirm.

BACKGROUND

I. The 2016 Judgment

The family court entered judgment in this parentage case

in 2016.

Respondent K.B. (mother) was awarded sole legal and 

physical custody of minor. Father was entitled to visitation on 

specified Saturdays and Sundays. He was required to provide 48 

hours’ advance written notice of his planned activities with minor 

for mother to advise of “any necessary health-related precautions 

relating to them.”1 Mother was to provide all meals and 

beverages for minor to consume during his visits with father; 

father was not to provide any additional food or beverages except

for bottled water.

Father could attend school or extracurricular events

involving minor even if they occurred during mother’s custodial 

time. Father was also entitled to at least one 45-minute call with 

minor each week.

Mother was required to provide written notice to father 

regarding all significant educational or health issues and to 

consult with him before making any significant decisions in those 

areas.

1 Minor has severe food and environmental allergies and also 

suffers from asthma and celiac disease.
3

II. Father’s Request for Order (RFO) to Modify Custody

In March 2018, father filed an RFO to modify custody on 

the ground that mother had violated the 2016 judgment in 

numerous respects, including thwarting father’s visitation. 

Father sought primary physical custody of minor and joint legal 

custody.

III. Hearing

The hearing on father’s RFO to modify custody took place

over the course of three days in January and March 2019. The 

family court heard testimony from father, mother, minor’s 

maternal grandmother, and minor’s maternal aunt.2

A family court services specialist who had interviewed 

minor also testified. She stated that minor had a “generally 

positive” perception of mother but a “generally negative” 

perception of father. Minor told her that he was scared of father 

because father had previously used his finger to flick the side of 

minor’s head, father sometimes followed them, and minor 

sometimes had the feeling that father would not bring him back. 

Minor stated, “I just don’t really want to see my father because 

he really stresses me out.” The specialist believed minor when he 

said that he felt stressed out, but she did not believe that minor

was “truly frightened of father” or that father had “injured” or 

neglected him.

2 In May 2018, mother filed a request for a domestic violence 

restraining order (DVRO) against father. The family court 

denied mother’s request in November 2018, finding that she 

failed to carry her burden of proof. In deciding father’s RFO, the 

family court also considered evidence received in connection with 

mother’s DVRO request.
4

At the conclusion of the hearing, mother’s counsel argued 

that minor had severe health issues that father did not know how 

to handle. Minor felt comfortable and safe with mother and had 

a stronger emotional bond with her. Reunification with father in 

a clinical setting would be an appropriate way to allow minor to 

bond with father.

Father’s counsel contended that mother’s violations of the 

2016 judgment were designed to frustrate father’s parental rights 

and constituted a significant change of circumstances. When 

asked by the family court if a series of counseling sessions 

between father and minor would be a “[g]ood idea or bad idea[,]” 

father’s counsel stated: “I believe it’s a great idea . . . . I believe 

that counseling sessions could definitely benefit this bond 

because [minor] needs someone to talk to, and I am sure that 

[father] will benefit from being in that type of environment, 

and . . . maybe they’ll be able to better understand each other.”

The family court took the matter under submission.

IV. Ruling

On March 21, 2019, the family court issued its ruling on 

father’s RFO to modify custody.

A. Factual findings

The family court found that both mother and father were 

“in violation of the judgment in various and serious particulars.”

Mother’s violations were “more pervasive and severe than 

father’s” (fn. omitted), but both parents were “serial violators.”

Mother had at times “improperly denied father visitation.”

Mother had also failed to comply with the judgment’s 

requirements to keep father informed in writing of significant 

educational and health issues and to consult with him.
5

The family court agreed with father “that mother fe[lt] 

entitled to decide when and under what conditions father w[ould] 

see [minor] and that mother’s behavior in this regard [was] 

improper gatekeeping.” At other times, however, mother’s 

“refusal to permit visitation [was] justified on account of father’s 

failure to comply with the terms and conditions of the judgment.”

The family court did not find that minor’s “health 

conditions are such that father cannot properly care for [him] 

during father’s periods of visitation.” It expressed concern, but 

did not find, that mother had occasionally “used ‘[minor’s] too 

sick’ as an excuse to deny father visitation.” It was also 

concerned, but did not find, “that father ha[d] been less than 

rigorous as to his responsibilities for his telephone/Skype time.” 

Finally, the family court found that the dispute between 

mother and father, as well as minor’s “reluctance to see his 

father[,] pose[d] a substantial danger to his best interests.”

B. Orders

The family court declined to modify legal or physical 

custody as set forth in the 2016 judgment.

The family court ordered mother to obtain, and provide to 

father, reports from minor’s pulmonologist and allergist stating 

any limitations on activities necessary due to minor’s health 

conditions. Father was ordered to “conform his activities with 

[minor] to adhere” to those limitations. If mother denied father 

visitation “on account of an asserted health issue,” she was 

required to provide father with supporting documentation from a 

physician.

The family court also ordered father and minor to engage in 

counseling sessions prior to the resumption of father’s visitation. 

The counselor was to first meet separately with father and minor 
6

for a maximum of three sessions each. Father and minor were 

then to participate in a minimum of four conjoint sessions “with 

the goal of repairing their relationship.”

V. Notice of Entry of Order

A minute order dated March 21, 2019—the same day that 

the family court issued its order on father’s RFO—states: “The 

[c]ourt having taken the mat[t]er under submission on March 19, 

2019, hereby rules as follows: [¶] The court makes its order 

pursuant to the Ruling on Submitted Matter signed and filed this 

date. [¶] Clerk is to give notice.”

Directly below, on the same page, the following title 

appears in bold type: “CLERK’S CERTIFICATE OF 

MAILING/NOTICE OF ENTRY OF ORDER[.]” Immediately 

below that, the superior court clerk certified that it mailed the 

notice of entry of the minute order to mother and to father’s 

counsel on March 21, 2019. The address listed for father’s 

counsel is a post office box in Pasadena.

VI. Appeal

On May 21, 2019, father filed a notice of appeal from the 

family court’s March 21, 2019, order.

DISCUSSION

I. Timeliness of Appeal

Father filed his notice of appeal 61 days after the superior 

court clerk mailed the notice of entry of the family court’s order. 

If the clerk’s mailing constituted proper service to father, father’s 

appeal would be one day late, requiring dismissal. (Cal. Rules of 

Court, rule 8.104(a)(1)(A), (b) & (e).)

We invited the parties to submit letter briefs to address 

this issue. In his letter brief, father contends that the notice of 

entry was mailed to his counsel’s post office box in Pasadena even 
7

though that address never appeared on documents filed in the 

family court.3 Mother fails to address this contention.

The record supports father’s position. Because the notice of 

entry of order was not served to the address of record for father’s 

counsel, service was improper. (Code Civ. Proc., § 1013; Cal. 

Rules of Court, rule 8.104(a)(2).) Accordingly, father’s appeal is 

timely because it was filed within 180 days of the entry of the 

order. (Cal. Rules of Court, rule 8.104(a)(1)(C).)

II. Denial of Father’s Request to Modify Custody

Father contends that the family court abused its discretion 

by denying his request to modify custody.

A. Standard of review

We review a ruling on a request to modify child custody 

under the deferential abuse of discretion standard. (Ellis v. 

Lyons (2016) 2 Cal.App.5th 404, 415.) A “court abuses its 

discretion if there is no reasonable basis on which the court could 

conclude that its decision advanced the best interests of the 

child.” (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124.)

B. Relevant law

Once a permanent custody order is entered by a family 

court, “‘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 & Yana (2006) 37 Cal.4th 947, 956 (Brown & Yana).) A

parent seeking to modify a permanent custody order must 

3 Father speculates that the post office box address was 

obtained by the superior court clerk through a search of his 

attorney’s profile on the State Bar of California Web site.
8

“demonstrate[] ‘a significant change of circumstances’ indicating 

that a different custody arrangement would be in the child’s best 

interest.” (Ibid.)

C. Analysis

Given “the importance of stability and continuity in the life 

of a child, and the harm that may result from disruption of 

established patterns of care and emotional bonds” (Burchard v. 

Garay (1986) 42 Cal.3d 531, 541), a strong presumption existed 

that the status quo should be preserved by denying father’s 

request to modify the custody arrangement set forth in the 2016 

judgment. The family court could reasonably conclude that this 

presumption had not been rebutted and that it was in minor’s 

best interest to remain in mother’s sole physical and legal 

custody.4 Mother had great familiarity with minor’s health 

issues and strict dietary requirements, and minor had a generally 

positive perception of her compared to a generally negative 

perception of father. Under these circumstances, no abuse of 

discretion can be found.

Attempting to resist this conclusion, father contends that 

the family court failed to properly weigh the evidence and he 

critiques its credibility determinations. “In reviewing the lower 

court’s ruling for abuse of discretion, we do not reweigh the 

evidence or evaluate the credibility of witnesses.” (Ryland Mews 

4 The family court made no explicit finding regarding 

whether father had demonstrated a change of circumstances. It 

did not need to. Because father had the burden of showing that 

both a change of circumstances had occurred and that modifying 

custody would serve minor’s best interests (Brown & Yana, 

supra, 37 Cal.4th at p. 956), the family court could deny father’s 

request to modify custody based only on the conclusion that it 

was not in minor’s best interests.
9

Homeowners Assn. v. Munoz (2015) 234 Cal.App.4th 705, 712.) 

Those determinations are solely within the province of the trier of 

fact, here the family court. (As You Sow v. Conbraco Industries

(2005) 135 Cal.App.4th 431, 454.)

Father also argues that the family court’s refusal to modify 

custody cannot be reconciled with its factual findings that were 

adverse to mother. We disagree. The family court correctly 

recognized that mother’s violations of the 2016 judgment were a 

factor it could consider in determining whether to modify custody. 

(Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 907.) But 

it also correctly noted that such a factor had to “be seen in the 

context of the best interest of . . . minor.” The family court’s focus 

properly remained “on the best interests of [minor], and not on 

penalizing” mother. (In re Marriage of C.T. & R.B. (2019) 

33 Cal.App.5th 87, 107.)

III. Counseling Order

Father also challenges the family court’s order requiring 

him to participate in counseling as a precondition to resuming 

visitation. We review for abuse of discretion. (Montenegro v. 

Diaz (2001) 26 Cal.4th 249, 255.)

A. Relevant law

Family Code section 3190, subdivision (a),5 provides that a 

family court “may require parents . . . and the minor child, to 

participate in outpatient counseling with a licensed mental 

health professional, . . . for not more than one year, . . . if the 

court finds both of the following: [¶] (1) The dispute between the 

parents[ or] between the parent or parents and the child . . .

5 All further statutory references are to the Family Code 

unless otherwise indicated.
10

poses a substantial danger to the best interest of the child. [¶] 

(2) The counseling is in the best interest of the child.”

The family court must “set forth reasons why it has found 

both of the following: [¶] (1) The dispute poses a substantial 

danger to the best interest of the child and the counseling is in 

the best interest of the child. [¶] (2) The financial burden 

created by the court order for counseling does not otherwise 

jeopardize a party’s other financial obligations.” (§ 3190, 

subd. (d).)

B. Analysis

In light of the animosity between mother and father, 

minor’s reluctance to see father, and minor’s expressed fear of 

father, the family court’s counseling order—with its express goal 

of repairing father and minor’s relationship—was eminently 

reasonable. Even father’s counsel told the family court that such 

sessions between father and minor would be “a great idea” and 

could benefit their relationship.

Father contends that the family court failed to set forth 

reasons why it found that the dispute between mother and father 

posed a substantial danger to the best interests of minor, as 

required by section 3190, subdivision (d). The reasons for the 

finding are readily discernable from the record. The acrimonious 

relationship between mother and father and the stress it caused 

minor—a child already dealing with significant health issues—

posed a substantial danger to his best interests. And, the family 

court impliedly found that this change of circumstances justified 

the counseling order to the extent it modified visitation.
11

Father also disputes the applicability of section 3190, 

arguing that it was intended for cases involving child abuse or 

neglect. He relies solely on In re Chantal S. (1996) 13 Cal.4th 

196. But that case is inapposite, as it held that section 3190 does 

not apply to juvenile dependency cases. (In re Chantal S., supra, 

at p. 208.)

DISPOSITION

The order is affirmed. Mother is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

CHAVEZ