Filed 2/20/20 Marriage of Gay and Terpko CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re the Marriage of JAIME GAY and MICHAEL TERPKO.
MICHAEL TERPKO,

Respondent,

v.

JAIME GAY,

Appellant.

A154558

(Humboldt County

Super. Ct. No. FL 140429)

In a prior opinion, this court affirmed an order changing custody of three children from their mother, appellant Jaime Gay, to their father, respondent Michael Terpko. (In re Marriage of Terpko (Apr. 16, 2019, A148641) [nonpub. opn.] (Terpko I).) In the present appeal, Jaime challenges an order denying her petition to modify the prior custody order and other related rulings. We find no merit in any of her numerous contentions and therefore shall affirm the order.

Factual and Procedural History

Jaime and Michael were married in 2001. They have three daughters, now ages 18, 16, and 14. Following their divorce in 2006, a final judgment was entered ordering joint legal and physical custody of the girls with Jaime having primary physical custody.

On March 14, 2014, Michael filed a motion to enforce the current order or, alternatively, to change custody due to his discovery that Jaime had withdrawn the children from school and was making allegations that during a recent visit he had sexually abused the oldest daughter. On March 19, Jaime sought a domestic violence temporary restraining order and requested sole custody of the children based on the allegation that Michael had sexually abused that daughter. A temporary restraining order was issued the following day. The two proceedings were consolidated and Leslie Packer, PhD, was appointed by the court as the custody evaluator.

On March 25, 2016, following a trial that spanned 15 court days, the court issued a comprehensive tentative decision indicating that sole legal and physical custody would be awarded to Michael, subject to and conditioned upon the development of a transition plan.

On April 1, 2016, Jaime filed a substitution of attorney relieving her trial counsel and substituting herself in propria persona.

On April 18, 2016, Michael filed a proposed transition plan and a proposed final order. Following a hearing on April 22, the court issued its final order modifying custody and adopting the proposed transition plan.

The court’s tentative decision, adopted in its final order as its statement of decision, finds insufficient evidence to sustain the allegations of sexual abuse by Michael and that, while Jaime may have made those allegations recklessly, the evidence did not support the conclusion that she knowingly made false allegations. The court also found that the parents “have engaged in a ‘take no prisoners’ war of an all or nothing battle where the only casualties are three wonderfully intelligent, sensitive, and unique young ladies who are stuck between the dysfunction of their parents.” “Neither party followed the [prior] court order to the letter” and to the extent they complied with the prior orders they did they did so only “begrudgingly.” The court found that between the two parents, “it is most likely that Mr. Terpko would facilitate contact with the non-custodial parent.”

The transition plan ordered by the court required that the children reside at Dr. Rebecca Bailey’s Transitioning Families reunification program site for a “length determined by Dr. Bailey.” The plan directed that an “appropriate therapist for Ms. Gay shall be identified by Dr. Packer in collaboration with Dr. Bailey. Ms. Gay shall attend therapy as recommended by Dr. Packer and shall follow all recommendations of the therapist. [¶] . . . After the children are released to the transport team, Ms. Gay shall have no contact of any sort with the children (i.e., no contact in person or via email, phone, letter, through third parties or in any other manner) until Dr. Packer, in collaboration with Dr. Bailey and Ms. Gay’s therapist, determines that Ms. Gay is ready for reintegration with the children. It is anticipated that the period of no contact will be at least 90 days.” The order awarded Michael sole legal and physical custody of the children, but directed that “Ms. Gay shall be kept fully informed of the children’s medical treatment and needs, psychological treatment and needs and educational progress. Mr. Terpko shall cooperate to make this information sharing happen and shall sign any and all releases necessary to allow Ms. Gay full access to such records.”

In April 2019, this court affirmed the April 2016 custody order in Terpko I.

In the meantime, the children completed the transition program and, on April 28, 2016, they were reunified with Michael. Almost immediately, a dispute arose regarding the court ordered requirements for Jaime’s visitation. Despite Jaime’s refusal to participate in counseling as directed by the court order, supervised visitation began in February 2017. Between February and December 2017, Jaime had seven supervised visits with the girls.

In January 2018, Jaime filed a motion to modify the April 2016 custody order. She sought sole custody of the children based on new allegations of abuse and also sought to add an addendum to the custody order to correct alleged errors and omissions in that order.

The matter was first heard on February 26, 2018. At the hearing, Michael objected to the lack of timely service and at his request, the matter was continued to April 4 for an “initial hearing” on Jaime’s motion. In the same order, the court ordered that all child welfare services reports be sealed, denied Jaime’s oral motions to relieve minor’s counsel and to require the children to attend the April hearing, and appointed a “child custody recommending counselor.”

On April 4, the court denied the motion for change of custody. The court explained that Jaime failed to demonstrate a prime facie case of changed circumstances sufficient to warrant reconsideration of the existing custody order. The court also denied Jaime’s requests to have the children present at the trial, to have minor’s counsel removed, to have a new child custody evaluator appointed, and to add an addendum to the April 2016 order. Finally, the court granted a motion by minor’s counsel to transfer venue to Santa Clara County and to be relieved as minor’s counsel.

Jaime timely filed a notice of appeal.

Discussion

On appeal, Jaime challenges essentially every action taken by the trial court. Moreover, she contends that judicial misconduct resulted in structural error that requires reversal of the court’s order. As discussed below, we find no error, structural or otherwise, and shall affirm the order denying Jaime’s request for a change of custody. This determination renders moot Jaime’s challenge to the court’s refusal to have the children present at the trial and to appoint a new child custody evaluator. Similarly, her contention that the court erred in denying her motion to remove minor’s counsel was mooted when the court granted counsel’s request to be relieved. Finally, we find no abuse of discretion in the court’s order changing venue.

1. Alleged Judicial Misconduct
2.
At the February 26 hearing before the Honorable John Feeney, Michael requested that Jaime’s motions be heard in front of the Honorable Christopher Wilson, the judge who issued the April 2016 custody order. As part of that discussion, Judge Feeney stated, “I did see an e-mail from Judge Wilson dated last Friday to one of our attorneys indicating that the case should be assigned to him, to Judge Wilson. So that is what we are going to do, as he’s clearly at this point most familiar as far as judicial officers with this case.” Accordingly, the matter was set for hearing on April 4 before Judge Wilson.

On March 28, Jaime obtained subpoenas directed to Judges Feeney and Wilson seeking all correspondence between Judge Wilson and counsel for Michael, Minors’ counsel, Dr. Packer, Dr. Bailey, and the Rio Dell Police Department. The good cause alleged in support of the subpoenas was Jaime’s suspicion that “there has been ex parte communication with Judge Wilson per Judge Feeney’s remarks during the February 26, 2018 hearing.” At the hearing on April 4, the Honorable Leonard J. LaCasse explained that Judge Wilson had recused himself due to Jaime’s subpoena so that he, rather than Judge Wilson, would hear the pending motions.

On appeal, Jaime appears to argue that Judge LaCasse should not have presided over the April hearing because there was no written recusal by Judge Wilson on file and that Judge LaCasse relied on improper ex parte information and “failed to notify all parties as to the substance of the ‘email’ communication that Judge Feeney referenced during the February 26, 2018 hearing.”

Initially, we note that Jaime waived any alleged challenge to Judge LaCasse’s authority to hear the motions. The record establishes Judge LaCasse offered to take a recess to confirm the grounds for Judge Wilson’s recusal, but Jaime indicated that she would like to proceed. At no point did she argue that Judge Feeney, or any other judge, should be assigned to the case. More importantly, Jaime has presented no evidence of judicial bias or improper ex parte communication. Judge Feeney’s reference to having seen an email from Judge Wilson to “one of our attorneys” does not support Jaime’s suspicions. The attorney referenced is, as Michael suggests, most certainly a court attorney assisting with the assignment of cases. There is no basis for Jaime’s assertion of judicial misconduct.

3. Change of Custody
4.
A noncustodial parent seeking to modify a custody order has a “substantial burden” to show a “significant change in circumstances” sufficient to warrant disrupting the existing situation. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088.) “The changed circumstance rule provides ‘that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements.’ ” (Ibid.) “ ‘ “An application for a modification of an award of custody is addressed to the sound legal discretion of the trial court, and its discretion will not be disturbed on appeal unless the record presents a clear case of an abuse of that discretion.” ’ ” (In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 111-112.)

At the hearing, the court asked Jaime for an offer of proof regarding the change in circumstances that warranted reconsideration of the existing custody order. Jaime cited two reports by the local child welfare agency following referrals for suspected abuse, as well as notes written by her eldest daughter.

The first report, prepared in June 2017, indicates that a referral was made to the agency after students at the girls’ school learned of the prior allegations of sexual abuse. The report does not include any new allegations of abuse. The report details the social worker’s investigation, including interviews with each of the girls in which they deny that they are currently being abused by their father or that they feel unsafe in his home. Ultimately, the investigator concluded that there was insufficient evidence to determine whether the abuse ever occurred and that the children were “not at imminent risk at this time.”

One of the writings by the oldest daughter is undated, but the others were written between October and December 2017. The letters do not contain any new allegations of sexual abuse. Rather, the daughter references her memories of the prior allegations of sexual abuse, which were investigated and discussed prior to entry of the April 2016 order. The writings express the daughter’s deep emotional anguish, her dislike and distrust of her father and her longing to see her mother. The daughter writes that Michael regularly speaks badly about Jaime in front of the daughter, he calls the daughter names and has threatened that the girls will be put in foster care if they act out.

The second report by the child welfare agency was prepared in December 2017 based on Jaime’s reports of physical and emotional abuse. The report indicates that referral was made after mother discovered the above notes written by the oldest daughter. The social worker interviewed the daughter who confirmed writing the letters. According to the social worker, the daughter “does not feel safe at her home because she does not want to be at the father’s home. She said that she misses her mother, and she wants to go back to the mother’s place. The minor said that it is traumatizing for her to be at the father’s home. She said that her father yells at her when she does not follow the rules at home. She said that the father is aggressive. [She] said that the father and the step-mother treat her mother, Ms. Gay poorly. Further, she stated that the father and the step-mother say bad things about her mother. [She] reported that the father believes that she and her siblings are brainwashed by the mother. [She] denied being coached by the mother. . . . She reported that there is no privacy at the father’s home, and she believes that the father goes through her stuff. [She] reported that she does not trust her father. [¶] [She] reported that she asked her father to see her attorney and the father refused for her to speak with an attorney. . . . [She] said that she wants to change her attorney because her lawyer is not providing her with any information about her mother. Also, she reported that her lawyer is not helping her or her siblings to go back to the mother’s home. She reported that she is afraid to be with the father. The minor reported that she is not comfortable with the father and the step-mother. [She] reported that her father always appears to be angry. She thinks that the father would hit her or push her. [She] reported that her father slapped her in the face when she was 10 or 11years old. [She] said that the father never physically disciplined her since then. [¶] [She] denied any sexual abuse at the time of this interview.” The middle daughter confirmed that there was no physical or sexual abuse in the home but indicated that she would rather live with her mother. She also claimed that her father was not allowing her to speak with her attorney. The youngest daughter reported that she was “fine” with the current custody arrangement and denied that there was any physical or sexual abuse in the home. Ultimately the report concludes, “The level of risk to children is moderate at this time. Both [older daughters] expressed that they are not comfortable living with the father and they prefer to reside with their mother. [They] continue to report that they have safety concerns and they do not want to live with the father. However, various collateral contacts were interviewed and no evidence of child abuse or neglect for the children in their father’s care, have been found by any party. . . . [¶] It seems clear that the children miss living with the mother, but there [are] no safety concerns found at the father’s home at this time.” The report finds the allegations of emotional and physical abuse inconclusive but confirms that “[n]o evidence of emotional and physical abuse was found in this investigation.”

As explained by the trial court, none of Jaime’s evidence established changed circumstances sufficient to warrant reconsideration of the custody arrangement. (See Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 738 [“ ‘a child will not be removed from the 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.’ ”].) The reports do not contain new evidence of sexual, physical or emotional abuse. While the daughter’s notes reflect her unhappiness with the custody situation, that is not a changed circumstance. In the court’s April 2016 order, the court observed that “[a]t this point, the children have no relationship with their father, and they do not want one,” largely due to Jaime’s “conscious or unconscious actions and statements.” The unhappiness of the two daughters with the present custody arrangement is certainly unfortunate and a factor to be taken into account. Nonetheless, the circumstance is perhaps an inevitable consequence of the unabated hostility between the two parents. The court has gone to considerable lengths to address the situation and to fashion an arrangement, with professional guidance, in the long-term best interests of the minors. Given the absence of changed circumstances, we cannot say that the court abused its discretion in denying Jaime’s request for modification of that arrangement and the April 2016 order.

5. Change of Venue
6.
Minors’ counsel moved to change venue under Code of Civil Procedure sections 397, subdivisions (c) and (e), and 397.5 on the grounds that the children had been living in Santa Clara County with Michael since April 2016, Jaime had moved to Southern California, and all the events and witnesses to the most recent allegations took place in Santa Clara County. Michael did not oppose the motion. Jaime opposed the motion on the grounds that she maintained a “secondary home” in Humboldt County and because the final order was still pending on appeal which she argued would, if reversed, “bring us back here to Humboldt.” At the conclusion of the hearing, the court granted the motion to change venue noting that “the kids are [in Santa Clara], they’re going to school there, the therapists are there, their father’s there, they’re living with their father.” We review the trial court’s order for an abuse of discretion. (State Bd. of Equalization v. Superior Court (2006) 138 Cal.App.4th 951, 954.)

Jaime contends the court erred in relying on the children’s change of primary residence because section 397 does not “say venue can be changed based on the primary residence of the minors.” But section 397, subdivision (c) permits a change of venue “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” When the primary dispute in an action is the custody of the children, the children’s primary place of residence is a reasonable factor to consider.

Jaime also contends that minor’s counsel should not have been allowed to bring the motion because she “had no legitimate stake in where this case was heard.” Minor’s counsel, however, “is charged with the representation of the child’s best interests” and has “[t]he right to take any action that is available to a party to the proceeding, including, but not limited to, the following: filing pleadings, making evidentiary objections, and presenting evidence and being heard in the proceeding, which may include, but shall not be limited to, presenting motions and orders to show cause, and participating in settlement conferences, trials, seeking writs, appeals, and arbitrations.” (Fam. Code, § 3151, subds. (a), (c)(4).) Accordingly, the court did not err in changing venue to Santa Clara County.

Disposition

The order is affirmed.

POLLAK, P. J.

WE CONCUR:

TUCHER, J.

BROWN, J.