Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. FL 995107
Sepulveda, J.
In a marriage dissolution action, the trial court held a contested child custody hearing and issued a permanent custody order awarding the father of the child sole legal and physical custody and limiting the mother to supervised visitation. The court found that the child’s mother had subjected the child to emotional abuse by demonizing the child’s father and refusing to cooperatively co-parent; by infantilizing the preadolescent boy by bathing him, applying lotion to his entire body, and brushing his teeth for him; and by promoting an unhealthy psychological and emotional enmeshment with the boy. The mother appeals, and contends she was denied a fair and impartial trial. We reject the contention and, finding no abuse of discretion in the trial court’s custody determination, affirm the order.
I. facts
Respondent J. H. (Father) and appellant Y. A. (Mother) were married in 1993. They are the parents of a son, Jonathan, born in 1997. Father filed a petition for dissolution of marriage in October 1999, and a final judgment of dissolution was entered in December 2004. Child custody has been a disputed issue between the parties from the inception of the case.
In April 2000, the parties stipulated to shared physical custody on a temporary basis, with Jonathan residing with Mother most of the time. Over the next few years, custody remained an open—and contentious—issue as the matter proceeded through a custody evaluation, psychological testing of the parents and child, a medical assessment of Jonathan, appointment of a special master, and appointment of minor’s counsel to represent Jonathan’s interests. Early in the proceedings, the custody evaluator remarked on the parties’ inability to cooperate as parents and urged them to moderate their behavior for Jonathan’s benefit. The evaluator stated: “it is an absolute certainty that Jonathan will develop severe emotional problems if the level of contentiousness, petty disagreements, unreasonableness, and lack of willingness to compromise between these two parents continues at the same level.” (Underlining in original.) The custody evaluator recommended an equal time share. In December 2003, the trial court entered a custody order upon the parties’ stipulated agreement to an equal time share.
In September 2005, Father moved for modification of child custody. Father alleged that Mother was “engaging in parental alienation and subjecting Jonathan to ongoing emotionally abusive behaviors.” Father sought primary physical custody of Jonathan, with Mother limited to alternate weekends. Mother responded that it would be detrimental for Jonathan to spend expanded time with Father, and said it was Father who should be limited to alternate weekends. The parties were referred to mediation to resolve their dispute. (Fam. Code, § 3170, subd. (a).) A psychologist, Gloria Wu, Ph.D., was the mediator. No resolution was reached, and Dr. Wu submitted her recommendation that Father be given primary physical custody. (Fam. Code, § 3183, subd. (a).)
A 13-day contested child custody trial was held from March to June in 2006. The court issued its custody order in September 2006. Commissioner Harvey Goldfine, sitting as a judge pro tem, found that the existing equal time share was unworkable given the parties’ inability to co-parent Jonathan without serious interpersonal conflicts detrimental to the child. The court awarded Mother primary physical custody, limiting Father to alternate weekends during the school year. The court noted that there was sufficient evidence to adopt Dr. Wu’s recommendation, and give Father primary physical custody, but ultimately decided that placing Jonathan with Mother during the school week was most likely to benefit the boy. The court urged the parties “to work cooperatively towards making this new custodial arrangement and conduct orders a success for Jonathan’s benefit. Should [Mother] continue to engage in future conduct that would demonstrate to this Court’s satisfaction that the custodial arrangement..., which grants [Mother] broader discretionary powers than before, cannot succeed because of [Mother’s] inability or unwillingness to allow [Father] to parent Jonathan under the guidelines imposed and/or continues to devote her energy to trying to prove [Father] is an unfit parent, the Court may well re-visit Dr. Wu’s recommendations as being in Jonathan’s best interest.”
Mother’s primary custody lasted only a few months. Commissioner Goldfine returned the parties to an equal time share in January 2007, upon Father’s motion for reconsideration and a report from minor’s counsel asking the court to grant Father additional custodial time. The court found that its order granting Mother primary custody had failed to alleviate the conflicts between the parents. The court found that Mother did not heed its admonishment and “continues to engage in efforts to prove [Father] is an unfit parent so as to obtain a court order reducing his custodial time with Jonathan.” The court denied Mother’s request for sole legal and physical custody, and reestablished an equal time share.
In March 2007, Father moved for modification of the January 2007 custody order. Father did not ask to change the equal time share but instead asked the court to issue orders concerning Mother’s parenting. Among other things, Father asked that Mother be directed to obtain psychological counseling, and to stop sleeping in the same bed as Jonathan, who was then ten years old. (Fam. Code, § 3190.) Mother denied the need for counseling (aside from trauma therapy due to Father’s conduct) and said she was working with Jonathan’s doctors to get the boy to stay in his own bed at night. Mother agreed that the existing custody arrangement should be reviewed, but maintained that she should be awarded primary custody.
In April 2007, Mother filed her own motion for modification of custody. Mother requested sole legal and physical custody of Jonathan, with Father limited to supervised visitation. Mother alleged that Father exposed Jonathan to pornography, violent movies and video games, and a pet dog to which Jonathan was allergic. Mother also said Father threatened her in front of Jonathan, and had a history of violence. In addition to moving for modification of child custody, Mother also moved to remove Jonathan’s attorney from the case, asserting that minor’s counsel ignored her complaints and concerns about Father’s parenting and failed to protect Jonathan from the “unhealthy environment” (including pornography, violent media, and an allergenic dog) perpetrated by Father.
The matter was again referred to mediation with Dr. Wu. Mother complained that Dr. Wu mishandled the case previously, and asked for her removal. The manager of mediation services denied the request, saying it would be imprudent to change mediators in the middle of a case. Mother then filed a motion to remove Dr. Wu as the assigned mediator. Mother asserted that Dr. Wu was biased and, in the previous disputed custody proceeding, had failed to follow proper procedures, had not read Mother’s pleadings, and had failed to adequately investigate Mother’s complaints and concerns.
The court held an evidentiary hearing on Mother’s motion to remove Dr. Wu as the family mediator and allowed Mother to cross-examine Dr. Wu and the manager of mediation services. Following the hearing, the court denied the motion to remove Dr. Wu in a seven-page order that addressed Mother’s various complaints about Dr. Wu. The court urged Mother to reconsider her previous refusal to participate in the mediation process, and referred Mother again to Dr. Wu for mediation. Mother declined to meet with Dr. Wu.
In May 2007, Dr. Wu submitted her custody recommendation to the court. Dr. Wu recommended that Jonathan be placed in the sole legal and physical custody of Father, with Mother limited to supervised visitation once a week. The recommendation was based on Dr. Wu “concerns about Mother’s problematic behaviors that continually subject Jonathan to ongoing emotional abuse.” Dr. Wu stated that Mother makes “constant attempts to vilify Father”; has a high level of “unhealthy psychological and emotional enmeshment” with Jonathan; and infantilizes Jonathan.
The attempts to vilify Father include numerous allegations of spousal and child abuse, which Dr. Wu and others have found unsubstantiated and unfounded. Dr. Wu also noted that Mother said things to Jonathan to alienate him from Father. In an interview with Dr. Wu, Jonathan said that Mother told him that his “real father” died “in the jungles of Thailand,” Mother’s home country Mother openly claims that Father forced her to have two abortions in the years before Jonathan was born, and Jonathan says his Mother told him “that his father had killed his brother.” Dr. Wu also noted that Mother would often ask the boy after visits with Father if Father did “anything bad” to him, which suggested that Mother was trying to make Jonathan fearful of Father.
Dr. Wu also reported on Mother’s unhealthy psychological and emotional enmeshment with Jonathan. Dr. Wu observed that “Mother has ignored several admonitions for her to stop sleeping with Jonathan. These admonitions date back to the custody evaluation that was completed in 2003 which recommended that Jonathan stop sleeping with his mother by the time he is six or seven years old.” At the time of Dr. Wu’s report, Jonathan was ten years old. Dr. Wu reported that “[n]ot only does Mother continue to sleep with Jonathan, she routinely brushes his teeth for him, bathes him, applies lotion to his entire body after bathing, and clips his finger and toe nails.” Dr. Wu noted that Jonathan “is entering preadolescence and should not be sleeping with his mother at this time.... Mother reports that Jonathan has tried to kiss her on the lips and has asked to see her breasts. Mother raised these concerns in the context of her allegations that Jonathan was being impacted by his exposure to pornography at his father’s home. Given Jonathan’s budding and natural curiosity about sex and the opposite sex, it is unfathomable to the undersigned why Mother continues to sleep with Jonathan when there is a second bedroom in Mother’s residence that can be made into a separate bedroom for Jonathan. [¶] Besides all of the obvious concerns around a ten-year-old boy sleeping with his mother, the other infantilizing behaviors that Mother is subjecting Jonathan to are emotionally abusive and are retarding his independence and his ability to individuate from her. The fact that Jonathan is not allowed by his mother to attend to his own hygiene maintenance even though he is perfectly capable of doing so (as he does so at his father’s home) is not only not developmentally/age-appropriate but is emotionally abusive and serves only to meet Mother’s emotional needs for enmeshment with Jonathan and her need to keep Jonathan dependent on her.”
Dr. Wu stated: “The parties have exhausted the range of professional interventions and services available in the court system (co-parenting counselors, special masters, comprehensive custody evaluations, and psychological evaluations, etc.). A change of custody is the only appropriate solution at this time given the history of this case and given the failure of or Mother’s refusal or inability to stop subjecting Jonathan to emotionally abusive behaviors through her own behaviors of infantilizing him, continually placing him in the middle of the parental conflict, refusing to take him to his extra-curricular activities during her custodial time... and in her refusal to stop her campaign to prove Father is an unfit father so that she may gain more custodial time.”
A five-day contested custody hearing was held in August 2007, at which Dr. Wu and the parents testified. Judge Verna Adams presided. Mother had unsuccessfully sought to disqualify Judge Adams on grounds of bias and lack of impartiality when Judge Adams was first assigned to the case the previous year. (Code Civ. Proc., § 170.1, subds. (a)(6)(A)(iii), (a)(6)(B).) Mother accused Judge Adams, and other Marin County Superior Court judges, of “cronyism and corruption.” A judge assigned by the Judicial Council reviewed the matter, and denied the motion in November 2006. Mother made another motion to disqualify Judge Adams at the start of the custody trial, and Judge Adams struck the motion upon finding that the motion, on its face, disclosed no legal grounds for disqualification. (Code Civ. Proc., § 170.4 subd. (b).)
Following the evidentiary hearing, Judge Adams awarded Father sole legal and physical custody and limited Mother to supervised visitation once a week. In making its custody determination, the court rejected Mother’s allegations that Father perpetrated domestic violence, finding the allegations “not substantiated.” The court did find that Father “has not always exercised good judgment in his parenting decisions” by, for example, taking Jonathan to an R-rated movie and exposing him to computer pornography. However, the court found that Mother’s parenting was far more problematic. The court found that Mother was subjecting Jonathan to emotional abuse, and that Father “is the only parent who can meet Jonathan’s developmental needs and who appears open to making Jonathan available to Mother if Mother demonstrates an ability to co-parent with Father and to stop maltreating and infantilizing Jonathan.” The court catalogued Mother’s emotional abuse: “She constantly attempts to demonize Father and has repeatedly demonstrated an unwillingness or inability constructively and cooperatively to co-parent with Father.” Moreover, Mother “has demonstrated an unhealthy psychological and emotional enmeshment with Jonathan. She continues to sleep with him, despite repeated warnings (going back to 2003) to stop. [Mother] reported to Dr. Wu in 2005 that Jonathan had engaged in somewhat sexualized behavior toward her which makes it all the more stunning that she continues to sleep with Jonathan and to render her second bedroom (which should be Jonathans’ bedroom) unusable by him as a bedroom. She infantilizes this preadolescent boy, by bathing him, applying lotion to his entire body after bathing, and brushing his teeth for him.” The court urged Mother “to modify her behavior and gain an ability to deal with Jonathan in an age-appropriate manner and to refrain from burdening Jonathan with her negative views of Father.” The court encouraged Mother to seek therapy and stated: “If she does so and if she demonstrates progress, it will certainly be of help to her should she seek to expand her visitation with Jonathan.”
The court’s custody order was filed on October 11, 2007, and Mother timely appealed the order by filing a notice of appeal on December 7, 2007. The parties completed the briefing of their arguments on appeal in March 2009.
II. discussion
The evidence presented at the contested custody trial presented two starkly conflicting views. According to Mother, Father physically abused her and Jonathan during the marriage, recently threatened her, and was an unfit parent who neglected Jonathan’s health and exposed the boy to pornography and violent media. Father denied these claims and asserted that Mother infantilized Jonathan, and demonized Father in an effort to separate him from Jonathan. Father said Mother needed psychological therapy.
The conflict continues on appeal, where Mother maintains her version of events and insists that the trial judge, minor’s counsel, and the family mediator are all biased against her in accepting Father’s account. Our role on appeal is limited. We do not evaluate the credibility of witnesses nor reweigh the evidence. It is well-settled that “[t]he standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) We find no abuse of discretion. The trial court’s order is supported by substantial evidence from which the court could reasonably conclude that it was in Jonathan’s best interest that Father be given sole physical and legal custody.
California law provides that the “health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making orders regarding the physical and legal custody or visitation of children.” (Fam. Code, § 3020, subd. (a).) “The Family Code specifically refrains from establishing a preference or presumption in favor of any arrangement for custody and visitation. Thus, Family Code section 3040, subdivision (b), provides: ‘This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.’ ” (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 34-35, italics omitted.)
The trial court here decided that Father should be given sole legal and physical custody of Jonathan because Mother was subjecting Jonathan to emotional abuse. Specifically, the court found that Mother “constantly attempts to demonize Father and has repeatedly demonstrated an unwillingness or inability to constructively and cooperatively to co-parent with Father”; “has demonstrated an unhealthy and psychological and emotional enmeshment with Jonathan by, for example sleeping with the ten-year old boy despite repeated warnings to stop”; and “infantilizes this preadolescent boy, by bathing him, applying lotion to his entire body after bathing, and brushing his teeth for him.”
Mother denies demonizing Father. She denies telling Jonathan that the boy’s “real father” died in Thailand, or that Father killed Jonathan’s brother. Mother told Dr. Wu that Jonathan made up the Thailand story, and testified at trial that Jonathan sometimes lies. Mother does admit accusing Father of abusing her and Jonathan during the marriage, but she insists that Father did abuse her and Jonathan and that the trial court was wrong not to consider Father’s violent history in making its custody determination. Mother also says that Father made a death threat against her in October 2006. The court found Mother’s allegations of abuse and threats unsubstantiated, and cautioned Mother that “[s]trident repetition of these allegations does not validate them.”
We, too, find nothing in the record to substantiate Mother’s allegations that Father is violent. To prove her claims, Mother cites us to (1) her application for a restraining order in November 1999 (a month after Father filed for dissolution) and the order issued on that application; and (2) an October 2006 police report in which Mother accused Father of making an indirect threat, through Jonathan: during a disagreement between the parents at a doctor’s office, Father reportedly asked Jonathan “do you know who is going to get killed?,” and pointed at Mother who was standing across the room.
The bare existence of the 1999 restraining order does not establish the truth of Mother’s numerous allegations of spousal and child abuse. There is no indication in the record that the order was based on a positive, adjudicated finding of domestic violence, rather than a protective order based on Mother’s allegations. In fact, the record indicates that Father stipulated to the stay-away order, and that order was dissolved in January 2001. All the neutral professionals who have considered the issue over the years have concluded that Mother’s allegations of abuse are unfounded. Dr. Wu testified that she saw no indication in her meetings with Jonathan that the boy had witnessed or suffered domestic violence. Moreover, the alleged domestic violence occurred years earlier according to Mother, from 1996 to 1999, and thus (even if true) is too remote to give rise to any presumption that Father should be denied custody. (Fam. Code, § 3044, subds. (a).) The only purpose Mother could have for repeating her allegations of marital violence at this late date is for the improper purpose discerned by the trial court—to demonize Father. As for the alleged threat made in October 2006, Commissioner Goldfine did not credit the alleged threat, denied Mother a restraining order upon concluding that she was in no danger, and soon thereafter granted Father joint physical custody. In short, the record supports the trial court’s finding that Mother tries to demonize Father and is unwilling or unable to cooperatively co-parent with Father.
There is also substantial evidence supporting the trial court’s finding that Mother has demonstrated an unhealthy psychological and emotional enmeshment with Jonathan by, for example, sleeping with the ten-year old boy despite repeated warnings to stop, and “infantilizes this preadolescent boy, by bathing him, applying lotion to his entire body after bathing, and brushing his teeth for him.” Mother did not deny these activities; she denied that they are harmful. At trial, Mother did agree that it was not appropriate for ten-year old Jonathan to sleep in the same bed with her but she admitted that she did not come to that realization until the previous year. Mother also showed no urgency in addressing the matter. Mother said she was “working on it” but insisted that Jonathan is “very young, so the progress is very slow.” Mother placed only one bed in her apartment, in her bedroom, and used a second bedroom for storage rather than as a bedroom for Jonathan.
As to Jonathan’s hygiene, Mother insists that her personal attention to Jonathan’s grooming is consistent with the recommendations of Jonathan’s physicians. Mother argues that Jonathan has a skin condition requiring lubrication, and impaired fine motor skills requiring assistance with teeth brushing. But there was evidence at trial that Jonathan was fully capable of grooming himself, and did so at Father’s house. Dr. Wu also noted, when cross-examined at trial, that a physician’s recommendation of parental assistance does not justify Mother’s extensive involvement in Jonathan’s grooming. The evidence supports the trial court’s finding that Mother infantilizes Jonathan.
In addition to contesting the sufficiency of the evidence to support the trial court’s findings, Mother contests the impartiality of the trial judge. We find no basis for Mother’s accusation of bias. As a preliminary matter, we note that the trial judge did not, contrary to Mother’s argument, act improperly in striking Mother’s motion for disqualification at the custody trial. (Code Civ. Proc., § 170.1.) Mother had moved to disqualify Judge Adams earlier in the dissolution proceeding, and the motion was denied by an independent judge. (Code Civ. Proc., § 170.3, subd. (c)(5).) Mother’s remedy was to petition for a writ of mandate, which she did, and which we denied. (Code Civ. Proc., § 170.3, subd. (d); People v. Mayfield (1997) 14 Cal.4th 668, 811.) Having sought review of the order denying judicial disqualification, Mother retained the right (now exercised) to assert a constitutional due process claim that the trial judge was not impartial. (Id. at p. 811; People v. Brown (1993) 6 Cal.4th 322, 336.) Mother did not, however, have the right to make repetitive disqualification motions every time she appeared before Judge Adams. Generally, a party “may file no more than one statement of disqualification against a judge.” (Code Civ. Proc., § 170.4, subd. (c)(3).) “Repetitive statements of disqualification not alleging facts suggesting new grounds for disqualification shall be stricken by the judge against whom they are filed.” (Ibid.) Judge Adams acted properly in striking Mother’s repetitive disqualification motion and proceeding with the custody trial without further delay.
In fact, it does not appear on this record that Mother sought review of the original November 2006 order denying disqualification, but of subsequent orders denying disqualification. Nevertheless, we will deem Mother to have preserved her right to contest Judge Adams’s impartiality.
Turning to the substance of the claim, we find no denial of due process. Mother claims that Judge Adams revealed her bias by admitting in evidence Dr. Wu’s recommendation and testimony despite Dr. Wu’s failure to comply with state-mandated mediation protocol. Mediation protocol, according to Mother, required Dr. Wu to be able to recite at trial Family Code section 3011’s best interest test. Mother also faults Dr. Wu for not reading the entire case file.
We find no error, and certainly no bias, in Judge Adams’s admission in evidence of Dr. Wu’s report and testimony. Trial judges, not mediators, must be conversant in statutory law and even trial judges cannot be expected to recite statutes from memory. Nor was the admissibility of Dr. Wu’s report and testimony compromised by her failure to read the case file in its entirety. The case file is massive. The trial court observed that the record below consumes 20 court files, “five expando files, and a bankers’ box.” Even the partial selection of documents presented on this appeal approaches 3,000 pages. Dr. Wu reviewed extensive materials relating to the case, including psychological evaluations and “[n]umerous submissions by both parents.” Her personal files on the case exceeded eight inches in thickness. Dr. Wu testified that she tried to obtain as much information as she could but was unable to read the entire file “given the resources and the amount of time” she could spend on a case. To the extent that Dr. Wu did not read materials in the file that Mother believes were relevant to Dr. Wu’s custody recommendation, Mother had the opportunity to cross-examine Dr. Wu on the matter, which Mother’s attorney did during two days of cross-examination. Mother’s allegation that Judge Adams was biased in considering Dr. Wu’s report and testimony is meritless.
III. disposition
The October 11, 2007 custody order is affirmed.
We concur: Ruvolo, P.J., Rivera, J.