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               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR



EARL SMITH,                                                           B264476

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PF 004106)
         v.

REBEKAH VILLAFAÑA,

         Defendant and Appellant.




         APPEAL from order of the Superior Court of Los Angeles County, Dianna
Gould-Saltman, Judge. Affirmed.
         Rebekah Villafaña, in pro. per., for Defendant and Appellant.
         Earl Smith, in pro. per., for Plaintiff and Respondent.




                                  ________________________________
                                INTRODUCTION
      The parties are before us for a second time. In the prior case, we affirmed an
order awarding Earl Smith (Father) sole legal and physical custody of their minor
daughter (the child), and granting Rebekah Villafaña (Mother) monitored visitation
rights every Friday and Sunday mornings. (See E.S. v. R.V. (May 16, 2011,
B223635) [unpub. opn.].) Subsequently, Mother filed a request to modify the
order. Arguing that Father had frustrated her visitation rights, Mother sought a full
reversal of the order. Following an evidentiary hearing, the trial court issued an
order maintaining Father’s status as the sole legal and primary physical custodian,
but modifying the visitation procedures to address Mother’s concerns. Mother
contends the trial court erred in continuing monitored visits. Finding no abuse of
discretion, we affirm.
        FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      On February 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 visits was required to be monitored by “a professional monitor or
a responsible adult agreed upon by the parties.” The visits were to be held at “a
facility such as was previously used in the past, the cost of which is to be borne by
[Mother].” 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 had refused to provide her with recent


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pictures of the child or update her regarding the child’s health and education. She
argued that Father had failed to provide the child with a stable and consistent life,
noting that he had gone from being employed -- when the case began -- to
unemployed as a result of a disability, to being a freelance music teacher. In
contrast, Mother noted that she had lived in the same residence for the past six
years, had paid 100 percent of the child’s medical insurance for the past five years,
and had maintained her employment with the Los Angeles Unified School District
since 2006.
       Mother also detailed how Father allegedly had frustrated her visitation
rights. According to Mother, beginning in 2011, as a result of changes in her work
schedule, she asked Father to change her Friday visit to another day in the week,
but Father refused. Father also rejected and terminated the services 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
locations 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 Hearing on Mother’s Petition to Modify Order
       The trial court (Judge Dianna 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 heard testimony and oral argument. Minor’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
messages 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.


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      Mother testified she was seeking sole legal and physical custody because
Father had 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 unemployment “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 November 2013. She stated that Father
restricted 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 engaging in a “campaign” to withhold visitation between Mother and the
child. He asserted that he had tried to accommodate Mother’s requests. For
example, in response to Mother’s request to change her court-ordered visits from
Friday to Saturday, Father told Mother that it would be more appropriate to change
that 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 visit. Mother had changed the
visit site from a nearby location to a location 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 asserted
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 that


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Mother’s parents were not appropriate monitors, and had precluded them from
                   1
acting as monitors.
      The court also heard about an incident 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, Spivak cancelled the visit. Following the cancellation, Mother and
the maternal 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 past
the locked gate, Mother and the maternal grandmother started pounding on
Father’s door and yelling 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, Mother and the
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maternal grandmother left.


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

       At a hearing on Father’s request for a restraining order arising from this
2



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.

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      Marcela Perez testified she provided monitoring services for Mother from
March 10 to June 20, 2010. During this period, Father cancelled only one visit,
which was due to the child’s illness. Perez testified that Mother terminated her
services on June 20, after Mother 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 Father
related to his failure to pay her fees. On redirect, Perez stated that she amicably
resolved her issues with Father.
      Ariane Dora Fleiderman testified she provided monitoring services for
Mother for approximately six months in 2011. Fleiderman stated 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 been presented and the evidence is closed.” Counsel responded by
directing the court’s attention to testimony about the recent November 2, 2014
incident, which counsel argued showed that monitoring should be maintained due
to Mother’s continued erratic behavior and her inability to place the child’s interest
before her own.




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      B.     The Trial Court’s Findings and Order
      After hearing argument and considering the evidence, the 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, Mother
demonstrated “continued anger at Dad” and a “prismic view of facts,” i.e., she
“eliminate[s] some relevant facts or eliminates or changes the sequence of events
to correspond with her view of the world.” The court expressed concern over
Mother’s recent behavior, including her long absences from visiting the child
(from April to August 2013) and the more recent November 2014 incident. The
court concluded that “Mom’s attempt to get into Dad’s apartment building and her
providing an outdated custody order to the police as the basis for her justification
for the instructions she then received from the police” indicated 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] conspiracy against her.”
      As to Father, the court found 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
“restrict[ed] Mom’s access to their daughter.” As to the last finding, the court
explained that although Father had acted as “a gatekeeper in a restrictive manner,”
he had not engaged in any “custodial interference.”
      On March 24, 2015, the trial court issued 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 the


                                          7
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 the best interest of the child to have
unmonitored visits with Mother. The court held that monitored visits would
continue under the following new terms. As to the selection of the monitor,
Mother could choose any professional monitor, and Father would have 48 hours to
complete the intake process. Father would be able to veto or dismiss a professional
monitor only through appeal to the trial court. Alternatively, Father could select a
nonprofessional monitor. Mother’s parents were excluded from acting as
monitors. As to the allocation of professional monitoring costs, Father would 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
responsibility of the tardy parent. Finally, no monitor would be required for school
events open to all parents, such as recitals and graduation ceremonies.
      Mother was granted increased visitation rights, and her parents were
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provided an opportunity to accompany Mother during these visits. 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 Day, Lincoln’s Birthday, Cesar Chavez Day, Memorial Day, Labor
Day, Columbus Day, and Veterans Day. During 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 from 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.

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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 parent 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 Mother devotes much of her appellate
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 March 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 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.” (In re Marriage
of Brown & Yana (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 welfare 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 to


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persuade the court that a change in stable custody, lawfully acquired and
maintained for a significant period, is in the child’s best interest: “Under the
changed circumstance rule, custody modification is appropriate only if the parent
seeking modification demonstrates ‘a significant change 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, supra, 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 best interests of the child.” (In re Marriage of Melville
(2004) 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 reasonably differ, it is the
trial judge’s discretion and not that of the appellate court which must control.’” (In
re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1492.)
      Mother contends there was a significant change in circumstances, as Father
frustrated her visitation rights. The trial court, however, found that although Father
acted as “a gatekeeper in a restrictive manner,” he did not engage in any “custodial
interference” of Mother’s visitation rights. That finding is amply supported by the
record. Father’s testimony indicated that he objected to distant visit sites (more
than 30 minutes away from his home) in order to be able to arrive promptly to
resolve any issues 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 latest


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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. The 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 distinguishable. 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 failing 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 furnished “ground for a motion to modify the decree which the
court should consider as part of the array of circumstances affecting custody and
support”]; Mark T. v. Jamie Z., supra, at p. 1131 [mother’s proposed move to
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 in 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 (2008) 161 Cal.App.4th


                                            11
1068, 1072 [visitation orders may be modified based on the best interest of the
children without proof of the significant change of circumstances 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 for
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 evidence 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 generally 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 incorrect legal assumptions . . . .” (Mark T. v.
Jamie Z., supra, 194 Cal.App.4th at pp. 1124-1125.) As the trial court reasonably
concluded, Mother’s recent behavior supported continued monitoring.
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 facts 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 police and then relied on
the police instruction to justify her attempt to access Father’s building and visit the




                                          12
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.




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