I.S. v. D.R.

Full title: I.S., Plaintiff and Appellant, v. D.R., Defendant and Respondent.

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Oct 11, 2017

A147873 (Cal. Ct. App. Oct. 11, 2017)

Opinion

A147873

10-11-2017

I.S., Plaintiff and Appellant, v. D.R., Defendant and Respondent.

Kline, P.J.

ORDER MODIFYING OPINION AND DENYING APPELLANT'S MOTION FOR MODIFICATION
[NO CHANGE IN JUDGMENT]

BY THE COURT:

It is ordered that the opinion filed herein on October 11, 2017, be modified as follows:

On page 2 of the opinion, second sentence of the second full paragraph, replace "stating that S. had" with "after S. described ..."

On page 12, footnote 15, on the sixth line of the second paragraph, replace "he had three" with "he had killed three ..."

On page 17, third line of the first full paragraph, delete "Dr."

Appellant's request for modification of the opinion is denied. There is no change in judgment. Date: __________

/s/_________

Kline, P.J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. FPT-08-375918)

The parties have been embroiled in perpetual litigation over the custody of their child since soon after she was born in 2008. A trial in 2010 resulted in orders of joint legal custody with sole physical custody in appellant; a permanent custody ordered entered in 2011 increased respondent's visitation. After a trial in 2013, respondent succeeded in obtaining sole legal and physical custody. In a prior appeal, we reversed the 2013 judgment, finding that the trial court improperly denied appellant her right to challenge the conclusion of an investigation by Child Protective Services (CPS) into allegations that respondent had sexually abused the child, and failed to make a finding of changed circumstances as required in order to change a permanent custody order. (I.S. v. D.R. (Jan. 29, 2015, A140153) 2015 WL 476046.) Proceedings on remand resulted in orders maintaining sole legal and physical custody in respondent and dramatically reducing appellant's visitation. The present appeal is from those orders. We affirm.

STATEMENT OF THE CASE AND FACTS ¹

1 The facts preceding our decision on the prior appeal are set forth at length in our opinion in that case. They will be described here to the extent necessary to understand the issues now presented.

Appellant is the mother and respondent the father of S., who was born in July 2008. Appellant lives in San Francisco. Respondent lives in Marin and shares custody of two children from a prior marriage, E. and G., with his former wife, N.L.

Prior to August 2012, appellant had sole physical custody of S. and respondent had weekly visitation including two overnights per week. In July 2012, appellant contacted a therapist, stating that S. had described respondent sexually abusing her and her half siblings and sexually touching his then-girlfriend and the children's caretaker. A CPS investigation was conducted, including forensic interviews of S., E. and G., and resulted in a determination that the abuse allegations were unfounded. Respondent then filed an ex parte application for immediate change in custody on the grounds that appellant had falsely accused him of sexually molesting his children and was trying to brainwash S. into believing she was being abused in his home. Appellant maintained that she never intentionally made false allegations, reasonably believed respondent might have abused S. based on S.'s statements, and acted reasonably in contacting a therapist and cooperating with the CPS investigation. On August 16, Judge Mahoney awarded temporary sole legal and physical custody to respondent, and ordered visitation for appellant, a child custody evaluation and psychological evaluations of both parents.

The custody evaluation was conducted by Licensed Clinical Social Worker Rhonda Barovsky in November and December 2012. Barovsky's report concluded that S. had not been molested by respondent, although she qualified her conclusion at trial by saying it was " 'most likely' " respondent did not molest S. According to Barovsky, the behavioral symptoms usually shown by children subjected to molestation were " 'glaringly absent' " with S. At the outset of the CPS investigation, appellant sent to Child Protective Worker (CPW) Timothy Laird, a journal she had kept since about May 2010 describing statements by and facts about S. ranging from what she ate to descriptions of sexual abuse. Barovsky believed that the journal documented appellant questioning S. " 'almost to the point of interrogating' " when the child returned from time with respondent; that the ongoing questioning had an " 'element of emotional abuse' "; and that most likely, through the questioning, appellant " 'unconsciously and unwittingly' " encouraged S. to believe respondent had hurt her.² Barovsky recommended that S. live primarily with respondent but believed any further reduction in time with appellant might have a negative effect on S.

2 Barovsky suggested it was "almost as if mother cannot stop herself from questioning [S.]," even after specifically being told not to after [S.'s] first forensic interview."

According to appellant's subsequent testimony, between the completion of the custody evaluation at the end of December 2012 and the trial before Judge Tang in July 2013, S. told another child, "I'm going to kill you"; "said to her own cough, 'go shoot yourself and die' "; and began injuring herself by scratching and pinching her nose and hand until they bled, and began biting her nails. After the 2013 trial, Judge Tang found that respondent had not molested S., that appellant's testimony contradicted her denial of coaching S., and that S. had suffered emotional damage as a result of appellant's long history of questioning her. Judge Tang's order, filed on September 3, 2013, gave respondent full legal and physical custody and appellant visitation every other weekend, Friday afternoon to Monday morning, and every Wednesday evening. As explained in our opinion on the prior appeal, Judge Tang excluded all evidence on the question whether respondent had in fact abused S. prior to Judge Mahoney's August 2012 temporary custody order, erroneously believing that Judge Mahoney had already adjudicated the merits of those molestation allegations. (I.S. v. D.R., supra, 2015 WL 476046, at p. *12.) It was for this reason that we reversed Judge Tang's order.

While the prior appeal was pending, the parties negotiated two agreements regarding timeshare, formalized in court orders filed November 21, 2013, and March 12, 2014, resulting in a "50/50" timeshare.

Our decision on the prior appeal was filed on January 29, 2015, and the remittitur issued on April 2, 2015. Also on April 2, 2015, appellant filed an ex parte application for orders vacating Judge Mahoney's August 16, 2012 temporary order and reinstating the 2011 permanent custody order. At a hearing on April 10, 2015, appellant told the court that although she had a right to a trial on the merits of the abuse allegations pursuant to our remand order, she would prefer to avoid another trial and have the parties return to the 2011 order, negotiating their timeshare if adjustments were needed. Judge Massullo's April 10, 2015 order confirmed that in light of our reversal of Judge Tang's September 3, 2013 order, the order in effect was Judge Mahoney's temporary order of August 16, 2012, modified to incorporate the November 21, 2013, and March 12, 2014 findings and orders adopting the 50/50 timeshare.

Our decision having provided for appellant to recover costs on appeal, appellant filed a motion for attorney fees and costs on appeal pursuant to section 7605, subdivisions (a) and (d), seeking a total of $114,513.90. She also filed several ex parte motions that were denied by the court,³ which expressed frustration with her use of ex parte motions in non-emergency situations and made clear that it viewed her as harassing respondent. The court appointed counsel for S. due to concern raised by respondent about appellant's attorney having driven appellant and S. to San Francisco and had dinner with them after a settlement conference. Appellant's attorney, Glenn Goffin, represented that he gave appellant a ride because she did not have a car and nothing improper happened; the court remained troubled by the dinner and potential for influence being exerted on S.

3 These motions were for clarification of the April 10 order to explain the basis of the court's sub silento denial of the motion to vacate the August 2012 temporary order; to exclude Barovsky's report from trial and discovery proceedings or, if the report was to be admitted, for discovery from persons interviewed by Barovsky; and for discovery orders. Appellant also filed objections to the orders denying her motions to vacate the 2012 order and for clarification of that order.

In June 2015, a dispute arose between the parties over the summer vacation schedule for S. Under Judge Tang's 2013 order after the first trial, the parties were each entitled to an uninterrupted three-week vacation with S. After an initial exchange of emails in May and June in which respondent informed appellant that he would take S. from August 1 to August 15 and appellant responded that she would take her vacation time with S. from July 5 through July 25,⁴ on June 16, respondent emailed appellant that he did not agree with her plan because he was afraid appellant would harm S. through her effort to "validate the abuse narrative."⁵

4 A June 8 email from respondent to appellant reflects an assumption that appellant would have S. for the three-week period she had indicated, asking whether appellant would be leaving town "for the three weeks" and whether it would be possible for S. to attend an art camp with E. during a portion of that time.

5 The email stated, "With the reopening of the case, the stress and pressure of the trial, it is not in [S.'s] best interest to have this extended time with you. I am deeply concerned for her emotional and physical well being while in your care. [¶] To be perfectly blunt, my greatest fear is that you will eventually harm [S.] both physically and emotionally in an effort to validate the abuse narrative you have been purporting [sic] for the past several years."

An exchange of attorneys' letters followed. Respondent's then-counsel Elisabeth Wolter stated that due to concern that spending three weeks with appellant was not in S.'s best interest, respondent would "not permit" appellant any vacation time and would not exercise his own right to vacation with S. but rather would maintain the current timeshare plan without exception pending resolution of the litigation. Goffin took the position that appellant was entitled to three weeks summer vacation under Judge Tang's September 3, 2013, order, which appellant had "duly scheduled" with respondent.⁶ Wolter responded in a June 30, 2015 letter, citing new tensions between the parties "as [appellant] restarts her litigation efforts" and reiterating respondent's decision. Two versions of this letter appear in the record, one filed by Wolter and the other, significantly more strongly worded, represented to be what Goffin actually received; the latter warned that failing to comply with respondent's decision would "[place S.] in an extremely precarious situation in which law enforcement may be involved. [Appellant] has no court order giving her the vacation dates she is demanding, and the vacation will not be recognized by law enforcement."⁷

6 Judge Tang's order provided that the parents "shall discuss the timing of [the three-week] vacations in a courteous, respectful manner and develop a schedule that is reasonable for both parents." Although we had reversed Judge Tang's order, Goffin reasoned as follows: The trial court's April 10, 2015 order confirmed that the effective order was Judge Mahoney's August 2012 temporary order, modified to incorporate the provisions of the November 21, 2013, and March 12, 2014 orders; the November 21, 2013 order modified the "current visitation schedule" (which was established by the September 3, 2013 order) in ways unrelated to summer vacation and therefore adopted these unmodified provisions; so the April 10, 2015 order, by incorporating the November 21, 2013 order incorporated the summer vacation provisions of the September 3, 2013 order.

7 The first version of this letter was filed by Wolter as an exhibit in a July 13, 2015 ex parte application to modify visitation. Later in the litigation, appellant submitted a declaration attaching a version of the letter she stated was actually sent to her attorney. The letters are both dated June 30, 2015, and address three separate points, the latter two of which are identical in the two versions. The discussion of the first point contains some differences in wording, such as referring to appellant's "litigation efforts" in the first version and "invasive litigation efforts" in the second, and stating in the first that respondent "does not think it is reasonable that [appellant] has [S.] for three uninterrupted weeks" and in the second that "[i]n order to protect [S.], [respondent] cannot agree to twenty days with [appellant]." In addition to the warning described in the text, which appears only in the second version of the letter, the second version (but not the first) states that the parties never discussed or negotiated a schedule and that appellant's "single email to [respondent] stating, not requesting or negotiating, her vacation schedule does not suffice." As indicated in the text, appellant's email stating her vacation dates responded to respondent's email similarly stating his dates.

On July 5, 2015, respondent and the police came to appellant's home. According to respondent, appellant initially answered her intercom, but "became non-responsive" when the police announced themselves and then knocked on her apartment door after being admitted to the building by the property manager. In an ex parte motion filed on July 13, respondent stated that appellant had been refusing to communicate with him since July 5 and that he believed S. was staying with appellant but "I cannot be certain." Appellant maintained that respondent was lying, declaring that she had intentionally gone out to breakfast with S. and a friend that morning because she expected respondent to call the police and did not want S. to witness this.⁸ Appellant stated that she had had S. call respondent every other day, and he had returned one of the calls by calling appellant's landline, demonstrating that he lied when he told the court he did not know where S. was.

8 Appellant's description of the facts was subsequently corroborated by a declaration from the friend with whom she said she and S. went out for breakfast.

On July 13, 2015, respondent filed an ex parte application to modify the visitation schedule based on alleged sexual abuse of S. by appellant. Respondent argued that while he had been absolved of molesting S., appellant "has herself subjected her daughter to years of sexual abuse through her attempts to label [Dad] as a sexual predator," including unfounded allegations, coaching S., "inappropriate and suggestive use of props to simulate male genitalia,"⁹ and "reporting vaginitis, 'pinching' [S.'s] vagina, etc. as examples of sexual abuse."¹⁰ Respondent was concerned that having "almost a month alone with Mother" was not in S.'s best interest, in light of Judge Tang's previous findings that appellant was a "significant detriment" to S. due to her coaching S. to believe she was being molested and employing "atrocious and damaging behavior" such as using a "banana" to simulate a man's penis when S. was four to five years old. Respondent argued that appellant was "unilaterally deciding to keep [S.] under her full custody and control, with no visits by respondent, for 21 days," and that appellant might cause immediate harm to S. Respondent quoted various findings in Judge Tang's September 2013 order regarding appellant coaching and posing a risk of emotional damage to S.¹¹ Opposing the ex parte application, appellant argued that there was no emergency, both parties had been following the summer vacation provisions of the September 2013 order until respondent suddenly announced on June 16 that he had changed his mind, and respondent had chosen to challenge her vacation at a time he knew her attorney was out of the country. Among other materials filed in support, appellant filed a preliminary expert report by Dr. Hala Saleem, which was highly critical of Barovsky's evaluation and stated that the report was tainted by bias and should not be relied upon.

9 This was a reference to an incident both Judge Tang and Judge Massullo found significant. As appellant described it at the first trial, when S. told her that "respondent and G. touched each other and 'showed [appellant] how by gently slapping the top and the bottom of the penis head,' appellant gave [S.] a party blower and told her '[l]et's say this is . . . their pimpie.' Appellant continued, 'She was totally like giggling, like "hee." It was all so fun. You know, she was like—she puts it like—I just give it to her like this. Like this; right. She puts it here to her privates, and she goes "ha." And then did like this. I remember it very clearly.' "

10 In another incident of significance to Barovsky and the trial court, on the evening of Saturday November 10, 2012, appellant took S. to the emergency room at San Francisco General Hospital, saying S. was suffering vaginal pain and had told her that respondent " 'touched and pinched her privates' " that morning. S. was examined by a physician but a forensic examination was not performed because it was determined the case had to be referred to Marin County. S. reported that her father had " 'hurt her "bixie" (pointing at vagina) by touch early this morning' "; there was redness on her external genitalia but no trauma or laceration and no pain on examination, and her condition was assessed as "mild vaginitis." According to appellant, the Sausalito Police Detective working on the case, Brian Mather, came to the hospital about 1:00 a.m. and offered to photograph any trauma S. had sustained, but appellant declined because she had been told there was no trauma and she did not want to subject S. to another examination. Barovsky later reported that Mather told her he wanted S. to be examined at the hospital and appellant refused, saying she did not think anything would be revealed because she did not think respondent " 'enters [S.'s] vagina when he molests her.' " Three days later, on November 13, respondent took S. to a pediatrician, who reported a normal examination and did not suspect abuse. Subsequently, on December 23, S. arrived from respondent's home with a " 'major rash on her privates' "; appellant took her to an urgent care clinic and she was diagnosed with Candida vulvovaginitis.

11 This, of course, was the same order appellant was relying upon for her claim to vacation time with S., and which we reversed on the prior appeal. Appellant argues that respondent's reliance upon Judge Tang's negative findings was improper in light of the restrictions Judge Tang imposed on the evidence appellant could present, which restrictions were the basis for our reversal.

On July 14, 2015, without a hearing, the court entered a temporary order providing that appellant was to have time with S. on Mondays and Wednesdays from 5:00 to 8:00 p.m. and every other Saturday from 9:00 a.m. to 5:00 p.m., until further order of the court, and setting a hearing for August 17, 2015. Appellant describes this order as reducing her time with S. from 50 percent to six percent.

Appellant filed a request for mediation prior to the August 17 hearing, declaring that S. was "emotionally devastated, crying uncontrollably for over two hours," when appellant told her "she would not be staying overnight with [appellant] for an unknown period of time into the future." She then filed an ex parte application for sole custody pending trial, with 50 percent visitation for respondent, arguing that respondent's ex parte application constituted knowingly false allegations of child sexual abuse under Family Code section 3027.5, subdivision (b).¹² Contesting respondent's representations that she insisted on believing S. had been abused, appellant stated that she had consistently maintained she did not know whether what S. reported was true, noting her statement to the court after our remand that she did not want a retrial or to portray respondent as molester but only wanted to return to the custody and visitation provisions of the 2011 order, before respondent instituted efforts to change it.

12 Further statutory references will be to the Family Code unless otherwise specified.
Section 3027.5, subdivision (b), authorizes the court to order supervised visitation or limit a parent's custody or visitation "if the court finds substantial evidence that the parent, with the intent to interfere with the other parent's lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made."

After a hearing on August 17, 2015, the court granted respondent's application, confirming the visitation schedule set forth in the July 14 temporary order. According to a subsequent declaration by appellant's attorney,¹³ the court initially denied both respondent's ex parte application for modification of the time share and appellant's ex parte application for temporary sole custody and reinstatement of the 50/50 timeshare, stating that the court intended to maintain the status quo pending trial. When counsel pointed out that the court had changed the status quo by the July 14 order, the court denied having done so, stating that the order only concerned summer vacation, and after reading from "what appeared to be the case file" for several minutes, ordered that visitation would be pursuant to the July 14 order until a decision on the trial. Appellant's subsequent description of the hearing, similarly, stated that the court initially said it would not hear respondent's July 13 ex parte application but would address it during or after the trial, appearing "not to know that she had already granted his request—a request that changed the April 10, 2015 visitation order drastically—to the detriment of our daughter. It is unclear whether the court even read [respondent's] ex-parte pleadings or my responsive declaration from July 13, 2015, and my cross-motion from August 5, 2015."

13 This declaration was filed in support of appellant's writ petition in this court, which, as will be described, resulted in a temporary stay of the July 14 and August 17 orders but was later denied.

Appellant responded to the August 17 order with a letter to the court questioning whether it "truly intend[ed]" to reduce her share of time with S to six percent and, in effect, asking the court to change its order if it did not.¹⁴ This was followed by an ex parte application seeking reinstitution of the April 10, 2015, order and sole custody pending trial. In addition to her own declaration, appellant offered the opinion of child psychiatrist Dr. Hala Saleem that the changed custody order would be detrimental to S. and suggested that the child's attorney, who had visited appellant and S. on August 22, could now give a preliminary opinion whether it was safe for the child to be with one or the other of her parents.

14 Appellant wrote:
"Dear Judge Massullo:
"I am sending this letter to make sure that you know what you have done with visitation in this case.
"On April 10, you set visitation as it was during the appeal, approximately 50/50 timeshare.
"On July 14, you signed a temporary emergency order that changed visitation so that [S] is with me for a total of 8 hours every other Saturday and two midweek visits of 3 hours. That is, about 94/6 timeshare. Since I do not have a car, the midweek visits are unworkable for me which reduces my visitation time to 3%.
"On August 17, you appeared not to know that you had changed your April 10 visitation order.
"If you truly intend for [S.] to spend 94% (in reality 97%) of her time with her father between now and trial, and truly believe that that is in her best interest, then that is your ruling. If not, you have the power to change it.
"Thank you for your attention."

The court denied appellant's request with an order noting that sanctions might be considered if further ex parte motions were filed absent emergencies. Appellant filed a petition for writ of mandate in this court, seeking an order directing the trial court to grant her application for sole custody (A146181). On October 14, 2015, we denied the petition but stayed the trial court's July 14 and August 17 temporary emergency orders pending final resolution of the custody case and ordered immediate resumption of the "custody and negotiated 50/50 parental-visitation arrangement that was formalized by the superior court's April 10, 2015 Order After Ex Parte Hearing."

The trial took place before Judge Massullo on October 13 and 14, 2015. Minor's counsel, Margaret Pendergast, reported that S. had a healthy relationship with each parent, was comfortable with each of them, and said she wanted to spend more time with her mother. Counsel was concerned, however, because appellant "still believes that something happened between [S.] and her father." Pendergast stated, "The mother maintains that she did not make the report regarding the possible sexual abuse of her daughter. However, she followed through with the process and even sent a detailed email to CPS and the police detective stating that [S.] should never see her father. I hope that the mother realizes that [S.] is being damaged by these allegations and by the constant legal battling." Pendergast recommended visitation every other weekend, Friday afternoon to Sunday evening or Monday morning, with a weekday dinner on the off weeks.

At trial, respondent testified he and his ex-wife successfully co-parent their children but that joint custody of S. would be impossible because appellant makes it impossible to reach "any kind of reasonable agreement" about any issue, big or small. He also believed that appellant was "holding an abuse narrative so fervently" that she would "do anything to advance it." Respondent testified that appellant had been presenting false allegations to the court since S. was born¹⁵ with what respondent believed was the goal of reducing his time with S., but each time the case came to court the result was an increase in his time after appellant's allegations were refuted. He described an email appellant sent during the CPS investigation to PCW Laird, Detective Mather and the director of the facility where the forensic interviews were conducted in which appellant related asking S. to show her how respondent touches her and S. putting her finger inside her vagina. Appellant wrote in all capitals, "I NEED YOU TO MAKE SURE THAT [S.] DOES NOT HAVE TO GO BACK TO HIM EVER!!!"

15 At the parties' 2010 custody trial, appellant raised allegations against respondent including "conspiracy to commit murder, domestic violence to previous spouse, alcohol and drug abuse" and dishonest financial representations.
At the outset of the CPS investigation appellant sent CPW Laird several documents relating to these past allegations: A 2005 Oregon police report concerning a 911 call by respondent's exwife, N.L.; a 2005 temporary restraining order application filed by respondent's former girlfriend; a 2009 email from that exgirlfriend to appellant referring to respondent having purchased a knife as a gift for G. when he was four years old, having told her he had three people and described thinking of ways to kill his exwife and to kidnap his children, and stating that respondent was "a total looser [sic ] preying on women"; a transcript reflecting respondent's statement to the court that he had no history of abuse and last refilled his valium prescription in 2007, with medical records showing ongoing prescriptions through July 2008 and a 2008 prescription for Zolpidem; testimony from N.L. about respondent having told her he had "maimed someone overseas" and about her concerns over leaving the children with respondent because he combined medication with alcohol; a statement from a friend of appellant's about observations of respondent's use of valium and alcohol and his temper; and respondent's history of driving without a valid driver's license. (I.S. v. D.R., supra, 2015 WL 476046, at p. *3 & fn. 8.) Allegations based on these materials were litigated at the parties' 2010 custody trial.

Respondent believed appellant had engaged in "a systemic, long-term concerted effort to have this child believe that she's being molested and other nefarious activity by all members of her family, at least everybody in my whole circle."¹⁶ He testified, "[a] reasonable person would conclude, with all of this testimony by mom that was submitted into court and her statements, that this child is being coached to believe that she's being sexually molested" and he believed this was a form of sexual abuse: "Using a prop to simulate a man's penis in a child at the tender age that [S.] is, in my opinion, an act of sexual abuse. And that's just one example of many."

16 In his 2012 ex parte motion for sole custody, respondent stated that the CPS investigation was triggered by statements S. made to a therapist appellant took her to, including that respondent would "sleep naked with her and push [his] penis into her private areas" and "force [his] tongue into her mouth when [he] kiss[ed] her." Appellant maintained that S. first saw a therapist after the CPS investigation, on August 2, 2012; that respondent had no way to know what S. said to a therapist; and that S. never said anything about respondent forcing his tongue into her mouth or pushing his penis into her private areas. Saleem later stated that because she found no reference to such statements in any of the case materials, she believed respondent was either disclosing abuse S. had not revealed or fabricating the statements.

Respondent's belief that appellant was coaching S. was based on appellant's journal, which respondent learned about from the District Attorney's report, because the "nomenclature that's used was beyond . . . [S.'s] ability to be able to communicate at that level," with details such that "it would be unreasonable to think . . . that [S.] wasn't being coached" and words she "wouldn't have a grasp on" such as "bixie, pimpie," which respondent thought "must be a German word." Another example was the word " 'kitzler,' " which respondent said was "not a word that [S.] would be familiar with unless it was taught by her mother. The types of things that she's saying are inconsistent with a child that age unless she's been taught to say these things."¹⁷

17 The district attorney's report related appellant's statement that "[y]esterday [S.] told her that father touches [his daughter E.'s] kitzler, which in German means clitoris. [S.] sad that father will only stop touching [E.'s] kitzler when she, [S.], asks father to stop."

Respondent found it "curious" that appellant took S. to the emergency room at San Francisco General Hospital in the middle of the night but when given an opportunity to have a full evaluation for sexual abuse "declined to let the authorities proceed" and "rebuffed Detective Mather's willingness to have the exam right there." After the investigators concluded the allegations were unfounded, appellant's "abuse narrative . . . just kept growing," and respondent believed that appellant was continuing to coach S. at the time of trial, although his explanation when asked the basis for this belief referred only to matters from 2012. Respondent testified that despite the "overwhelming evidence" and his own testimony that he had not molested S. or his other children, appellant's persistence in "litigation, after litigation, after litigation trying to prove that these allegations are somehow real is where I feel like this is unreasonable at best and irrational on some level."

Respondent believed that one parent undermining the other "at a core level" creates the possibility of problems "down the road in terms of confidence and trust in how a child sees a parent," and that if appellant's coaching continued as S. got older, "it would have irreparable damage for her self-confidence, her ability and how she sees each parent," a "negative [e]ffect on her emotional well-being," and could ultimately result "in physical things that are undesirable." He felt S. was doing well currently and worried about her time with appellant, so was requesting a visitation schedule that would be "consistent with [S.] being able to continue to flourish as she is today." Respondent described the toll the continued litigation had taken on his family, robbing his older children of their innocence and putting "every member of the family on edge," creating such stress that his ex-partner "couldn't continue to endure" it, and causing the caregiver with whom respondent had been alleged to have had sex in front of the children, to stop spending time with them "because she feels like she's in harm's way of being dragged into court."

Respondent agreed that S. missed her mother and wanted to spend more time with her. He stated that if the court were to order a shared visitation schedule similar to the one the parties had previously agreed to in 2013, he would follow the court order.

Honey Hubbard, who lived across the hall from appellant and spent a "great deal" of time with appellant and S., observed a "happy, normal" relationship, with appellant engaging S. in enriching activities and assigning age-appropriate chores and structures. She described S. as a happy child, but on the two occasions Hubbard had seen her since the July 14, 2015, court order, S. was "more anxious" and upset by small things, particularly when it was time to leave. Appellant never told Hubbard respondent had molested S. or his other children, and she never heard appellant say this to anyone else; she had never observed appellant abuse S., attempt to "program" or create thoughts in her mind, question S. about what happened at respondent's house, make negative statements about respondent that S. could hear, or do anything to interfere with S.'s relationship with respondent. She described an occasion before July 14, 2015, when appellant commented that S. had "two happy, peaceful homes" and S. became "really upset and was crying," saying "the home in the country was not peaceful." Since July 14, 2015, Hubbard had been present when appellant spoke with S. on the telephone and observed that their interaction was "formal" and not "normal" for them in that respondent was present and appellant and S. were not allowed to speak to each other in German, which they often did at home. S. had told Hubbard "[m]any times" that she wanted to spend more time with her mother, and that her mother was her "best friend."¹⁸

18 Hubbard, a fellow in the neurology department at the University of California San Francisco with a Ph.D. in communications disorders whose work involves analyzing and displaying data through graphs and charts, had prepared graphs and charts demonstrating the percentage of time S. was with each parent for each month since her birth, based on the timeshares in the court's orders. The court excluded this exhibit, stating that as Hubbard was not appearing as an expert witness, sharing information from a confidential proceeding with her was a violation of statute and court order.

Another friend of appellant's, whose daughter was a good friend of S.'s, also described changes in S. after the change in custody. Jin Park testified that when the parties' timeshare was 50/50, S. was "very happy," "outgoing and friendly and playful," and did not display anxiety, but after the custody change she "seemed to be more withdrawn towards [appellant]" and "oftentimes very clingy; more clingy than I remember her to be." Park never observed appellant talking with S. about things that happened at respondent's house and appellant never told her that respondent had molested S.

Appellant testified that the CPS investigation began when she tried to arrange for therapy for S. in order to determine whether there was any truth to things S. had told her that suggested sexual abuse by respondent. Appellant did not want CPS involved at this point and asked the therapist not to contact them, but the therapist called CPS before even seeing S. She testified that she became alarmed when S. "French kiss[ed]" her (with "an open mouth") and said, alternately, that respondent kissed S. that way and that respondent "only kisses [G.] and [E.] that way." S. also said that respondent touched her "kitzler" (meaning clitoris) and touched E.'s "privates" as well. Regarding the word "kitzler," appellant testified that she had read in parenting books and internet resources that parents should give body parts their "real names," and related an incident when S., three and three-quarters years old, was "looking at herself," pointed at her "kitzler," and asked, " 'Mama, what is this?' "

Regarding respondent's testimony that appellant did not permit an examination of S. at the emergency room in 2012, appellant testified that S. was examined by a doctor and a forensic nurse, who "looked at [S.'s] privates and determined that there is no trauma besides what's . . . in the report." When it was discovered that the forensic nurse lacked jurisdiction and Detective Mather arrived at the hospital, it was 1:00 a.m. and appellant felt it did not make sense to drive to Marin "for the same result"; S. had been "very uncomfortable" during the second examination and appellant did not want to "expose her again."

Appellant testified that the email in which she asked the investigators to ensure S. never saw respondent again was written when appellant was "very distraught" after S. indicated that respondent touched her vagina. This was on the evening of the day in between S.'s two forensic interviews. In the email, appellant explained that S. had said she was scared to talk in the interview and appellant had been encouraging her to tell the interviewer what she had told appellant; during this conversation, "it came out that papa has been doing those things to her" and appellant asked S. to show her how he touched her. Appellant acknowledged that CPW Laird had told her not to talk to S. about the interview but testified that the director of the facility where the interviews took place, Grogan, had told her she was permitted to, and should, "encourage [S.] to tell Juan what she told me." Appellant testified that by the next day, she did not mean what she had said about S. never seeing respondent again, and she never withheld S. from respondent.¹⁹

19 Appellant pointed to an email she wrote to respondent a few days later after the CPS investigation concluded, saying, "There's no reason why [S.] wouldn't be there for her time with you. Please note that I did not want CPS involved in what my concerns were and I did not make a report to them."

After the CPS interview, appellant filed a motion with the court seeking therapy for S., "not to say dad did anything" but because respondent had asked for therapy to be stopped and "even" Dr. Barovsky had concluded therapy was necessary. When appellant saw the district attorney's report, she was "shocked" to see that she had "supposedly" said she wanted to move back to Austria, which she had never said to anyone. She "reached out to the team to clarify" this and a few hours later was served with papers indicating she lost custody, "primarily" because she was a "flight risk." She had not known anything about a hearing on custody. Appellant insisted that her main objective was always to get S. into therapy, regardless of whether the molestation allegations were true or false.

Appellant testified that co-parenting with respondent had been "very challenging and very hostile" from the beginning; in April 2009, she had insisted that they communicate only by email, to eliminate the "he said/she said" and "shelter" S. Appellant believed respondent wanted to co-parent with her "as long as things go his way." She acknowledged that respondent "had a point" about sole custody but believed there should be joint custody because it was "wrong" to take custody away from either parent. Contrary to respondent's testimony that he had always supported telephone contact between appellant and S., appellant testified that calls with S. since July 14 had been "[a]n absolute nightmare": She was limited to conversations in English for 10 minutes and it was "awkward" because she could hear respondent's voice in the background, telling S. what to say and when to end the conversation, and telling appellant not to ask questions and to rephrase questions.

Appellant testified that she never told Pendergast, S.'s attorney, that she believed "something happened between [S.] and her father," as counsel reported, but rather told Pendergast "that's what father wants everyone to believe, that I say this." Appellant reiterated that she did not know whether respondent had molested S. and was willing to believe he did not; she wanted to move on. Appellant wanted the court to interview S., because she did not believe Pendergast produced the report the court asked for: Pendergast did not ask S. about school or clarify the vague statement she related S. making about wanting "more time" with appellant, and offered a recommendation on custody that the court had not asked for.

At several points in her testimony, appellant reiterated that she did not want to be investigating the truth of the sexual abuse allegations. Asked for details about what she told the therapist in her initial phone call, appellant testified, "You know, this has been so long ago. I really wish not even to refresh my memory on that. I kind of would like to forget about it. I never made any allegations. I want to move on. I have no interest in rereading this whole thing and getting into this again. . . . [I]t should have been one investigation and not dragged out or anything. It's, like, what should I have done? It's, like, if a child brings that up, you need to pay attention to that." Later, on cross examination, When asked for further details about entries in her journal concerning S.'s statements, appellant said she did not remember more than what was in the journal and asked to "move on" because "[w]e're not here on sexual allegations."

Responding to further questions on cross examination, appellant described using a "party favor" to have S. demonstrate how respondent "tickles himself . . . at the head of the penis"; acknowledged entries in her journal reflecting her asking S. whether respondent touched G. and E. and S. saying respondent touched E.'s "kitzler" and did not stop when E. asked him to; and explained why she declined Detective Mather's suggestion to have S. further examined on the night appellant took S. to the emergency room (see fn. 9, at p. 7, ante).

Asked about the court's finding in 2011 that appellant's suspicions about respondent were not supported by the evidence and her anxiety was damaging to S., appellant testified that she did not recall what the suspicions were but denied that they included sexual molestation or "old domestic violence allegations, alcohol and drug abuse allegations, and weapon allegations" (see fn. 16 at pp. 12-13, ante). Appellant testified that the court's finding was based on appellant having played a tape for the court in which S. cried and said, "I don't want to go back to my papa," when she heard respondent's voice on appellant's voice mail saying he was outside.

After the children's forensic interviews in 2012, appellant told Detective Mather that she had a recording of "everything [S.] ever told her." At the present trial, she acknowledged that she did not give these recordings to S.'s therapist or to the detective and, when the court asked why she never gave them to the investigators, appellant replied that the investigation had already concluded Appellant testified that she did not think she still had the recordings, and when asked if there was a reason she did not provide at the beginning of the investigation, appellant said "no."

Asked why she pursued the prior appeal after the parties agreed to a 50/50 time share, appellant answered that it was an "injustice" for custody to be taken away from her "in a heartbeat fraudulently." Respondent's attorney asked, "So justice was more important, when you have a 50/50 existing agreement, than preserving your daughter's own well-being?" Appellant began to discuss the injustice of respondent going to the court ex parte with fraudulent or misleading representations about her being a flight risk, and the court directed counsel to manage appellant's unresponsive narratives; respondent's attorney stated, "I think it's indicative of her mental state, and I think that's a crucial issue for the court to determine. It's one of the allegations we've made in our trial brief with regard to the change of circumstances.

Appellant testified that before the court in 2013 ordered her to do therapy, she did a year of therapy with Dr. Ellen Salwen because she wanted to see if there was something she could do to help S.

Appellant's expert witness, Hala Saleem, a psychiatrist specializing in child and adolescent psychiatry, submitted an 85-page report that was largely a highly critical review of Barovsky's evaluation.²⁰ The report states that it was based on "review of the written record of the case, observation and analysis of the parties and [S.], and review of published reference works, articles, and other research materials." Saleem testified, however, that that she did not interview appellant, and she had never met S. or respondent. Appellant did not ask her to come to any particular conclusions in her report.

20 Respondent had moved in limine to strike Hala Saleem's report, arguing she lacked qualifications to be deemed an expert, had never interviewed respondent or S. and should not have been given Barovsky's report because no court order allowed her to review it. Respondent also moved to strike many of the exhibits Saleem relied upon in preparing her report.

The court refused to allow Saleem to testify regarding Barovsky's report, finding she was biased in that Barovsky had been a court-appointed evaluator²¹ in a custody dispute over Saleem's child and Saleem disagreed with the way the report was written.²² The court agreed that Saleem could testify in limited areas not involving Barovsky's report: Coaching, brain development, substance abuse, alcoholism and use of psychological evaluations.²³

21 Saleem testified that Barovsky was appointed as a "3118 evaluator" and was not the one who "made the final ruling" about custody; there was "another 730 evaluator who made [the custody] decision." Evidence Code section 730 governs the court's appointment of experts to investigate and report to the court on issues requiring expert evidence. Family Code section 3118 governs evaluations the trial court is required to order when it determines there is a serious allegation of child sexual abuse.

22 Saleem testified that she "had some disagreement with the way the report was written." The court remarked, "This witness is—she has a bias, a strong one, because she disagrees with what Ms. Barovsky recommended in her own custody evaluation determination and with the way the report was written." When Goffin pointed out that Saleem did not disagree with Barovsky's recommendation—which was that the child spend more time with Saleem—the court said, "she just said that she disagreed with the contents of the report. . . . This witness has had personal experience with this expert who has done a report, and she disagreed with not only the way the report was written, but some of the contents of the report. That's enough for this court to say that she is biased against Ms. Barovsky. She's not a neutral witness." Counsel for the minor agreed with the court, saying "I think she's biased based on the fact that she's had previous contact with Ms. Barovsky and didn't agree with her process, which is what she's here to criticize, the process."

23 Appellant's attorney had also wanted to question Saleem about domestic violence issues—whether there were potential risks to S. being in a house with someone who had past reports of domestic violence—but respondent stipulated that "domestic violence is bad for households." Saleem did testify that the effect on children of witnessing domestic violence "is the same as them experiencing domestic violence . . . as experiencing abuse themselves."

Saleem testified that there was no study demonstrating that false memories can be created in four-year-old children; all the studies involved older children. She testified that it would be "really hard" to implant a false memory in a four-year-old because of "semantic leakage," a concept she illustrated with an example: With a child up to even six years old, if the phone rings and Dad says " 'Pick up and tell whoever it is that dad is not here,' " the child will say, " 'Dad is saying that dad is not here.' " Asked whether constant questioning, coaching and telling the child what to believe could cause false memories in a four-year-old, Saleem testified that it would be difficult for the same reason—if asked, the child would say "[m]y mom told me to say this."

Saleem testified that children begin to notice their body parts, including genitals, as early as 18 months or two years of age, using whatever words parents have given them to name the part. Due to the prevalence of child abuse, for the last decade or so there has been a "very strong emphasis" on giving children "proper terminology about their private parts," along with telling them that if someone touches these parts, the child must tell a parent.

In Saleem's view, forensic interviews will not cause harm to a child if done appropriately. Forensic interviewers use anatomically correct dolls to help children described the abuse that occurred; asked whether use of a different sort of prop could cause emotional harm, Saleem said "if it is done to ask a child a question about what they have disclosed . . . it's not supposed to cause any harm." Having reviewed appellant's journal, Saleem testified that the majority of the entries were not about sexual abuse and of the "very small percentage" that were, most described things S. said, perhaps with a follow up question from appellant. A pie chart Saleem had prepared showed that 12 percent of the entries described questions appellant asked S., 61 percent were S.'s statements, and 27 percent were things appellant observed; five percent of the entries were about sexual matters. Asked her conclusion about whether there was a long history of appellant questioning S., Saleem testified that since the journal covered approximately two years, the 12 percent of entries reflecting questioning would not have made "any difference."

Saleem testified that appellant never told her that respondent abused S. and did not ask her to come to any particular conclusion in her report. Saleem had spoken with Grogan, the director of the Prandi Center, about his conversation with appellant between the first and second days of the forensic interviews in 2012, and he confirmed that he told appellant it was okay to tell S. she should tell the interviewer everything she had told appellant.

Asked on cross examination whether it was reasonable for a parent to continue to believe sexual molestation occurred after police, CPS and forensic medical investigations conclude it did not, Saleem testified that there was "a lot of evidence" of "systemic failure in child abuse cases." She testified that it was normal for there to be "no finding" on medical exam and that no finding on the medical exam is "not equal to no abuse"; even with molestation, "the most common finding is no damage to the genitalia" because "children heal very quickly."

Saleem testified that her own custody dispute involved allegations of sexual molestation of her six-year-old daughter. In response to questions from the court, Saleem testified that she was the person who brought the allegations to the attention of the authorities, initially she was not unhappy with the way they handled the information, but she was then "[s]hocked" at "[h]ow they handled the information my daughter gave to them during the interview that she had."

In remarks at the end of trial, the court expressed "great concern" about the fact that the tape of S. repeatedly saying her father abused her "never surface[d]," as well as about the lack of neutrality of the expert witness. In its Statement of Decision,²⁴ the court concluded that the allegations of sexual molestation were unfounded, based on the 2012 investigation and conclusions; found no "credible evidence" that the CPS or other investigations were flawed or inaccurate, specifically rejecting appellant's expert witness as biased; and found that appellant invented the allegations and coached S., rejecting as not credible appellant's testimony that she had a good faith belief S. was molested. The court believed the molestation allegations were part of an effort by appellant to exclude respondent from S.'s life and found that appellant's "actions concerning her groundless beliefs" that respondent molested S. "constitute emotional abuse against [S.]" In finding that respondent presented evidence of material changes in circumstances justifying a change in custody, the court cited the fact that appellant's belief that respondent molested S. arose after the 2011 order; "unrefuted" evidence of S.'s behavioral changes since 2011; appellant's coaching of S. and "fabricat[ing] the existence of the tape recording"; and respondent's change of residence and S.'s change of schools between August 2011 and July 2015. The court "confirmed" that the July 14, 2015, custody modification was necessary to protect S. because appellant's behavior "continued to be harmful to [S.'s] welfare," and found appellant's claims of abuse met the criteria of section 3027.5, allowing limitation of custody where a parent makes a report of child sexual abuse knowing it is false and with intent to interfere with the other parent's contact with the child.

24 The court filed its tentative ruling and proposed Statement of Decision on December 8, 2015. Appellant filed objections, and the court filed its Statement of Decision on January 13, 2016.

Finding it inappropriate to expand appellant's custodial time because the evidence showed she had not been exercising all of her weekday visits, the court awarded appellant visitation on alternate Saturdays, from 9:00 a.m. to 5:00 p.m., and weekday dinners on alternate Mondays from 5:00 to 8:00 p.m., with appellant responsible for all transportation. The court ordered appellant to complete at least six months of weekly individual therapy, with a provision for increased visitation if she did so, and ordered that appellant have "reasonable telephone contact" with S. Appellant's request for attorney fees was denied on the court's finding that respondent lacked the ability to pay the amount appellant requested.

Appellant filed objections to the Statement of Decision, followed by a motion for stay of the January 13, 2016 order, a new trial and disqualification of minor's counsel. The motion for new trial argued that the court abused its discretion, made errors of law, failed to weigh the evidence fairly and failed to consider critical evidence. The motion to disqualify Pendergast argued that the attorney acted in violation of the American Bar Association's standards for lawyers representing children in custody cases, acting as an evaluator making a custody recommendation rather than an attorney representing the child's wishes.

On January 27, 2016, the court denied the request for a stay and granted a hearing solely on the motion for disqualification, stating that the motion for new trial could be filed but no hearing would be conducted. Pendergast filed a declaration and requested to be relieved as counsel for S., as the court had ruled on the issues.

On February 16, 2016, appellant filed a considerably lengthier and more detailed motion for a new trial addressing the evidence she viewed the court as having ignored or weighed unfairly. Appellant charged the court with "irrefutable bias, laziness and most shocking, no concern for our child's safety or wishes," arguing that the court adopted almost everything respondent said or wrote "despite lack of or contrary to evidence"; showed bias against appellant by rejecting most of her statements "despite solid evidence" and toward some of appellant's witnesses by declaring them biased; rejected as biased an expert's report pointing out "clear and irrefutable errors in Barovsky's report and conclusions"; copied "approximately 95%" of respondent's proposed Statement of Decision without checking its accuracy and whether it was supported by the evidence; and ignored "a mountain of evidence on [respondent's] unstable and abusive behavior" and numerous studies presented in Dr. Saleem's report concerning the likely damage to a child from "such and abusive and unstable environment."

On March 11, 2016, appellant filed a request for an order requiring respondent's immediate attention to S.'s medical needs, stating she had not been seen by a dentist in two years and had refused to take the child to a podiatrist despite appellant having asked him to do so since January 2015 because of a concern about S.'s right foot. On the same date, she filed notices of appeal from the January 13, 2016 decision and from the January 27, 2016 order denying her request for a stay of the January 13 order, followed by a notice of appeal filed on March 15, 2016, indicating the motion for new trial had been denied by operation of law. At a March 18, 2016 hearing, the court denied appellant's disqualification motion, finding that Pendergast did nothing warranting removal and many of appellant's allegations against her were unfounded. The court stated, "It underscores [t]he court's problem with mother's voracity [sic], candidly, because it is a similar pattern to the accusations that were made against father of abuse." The court relieved Pendergast, subject to reappointment if necessary for future proceedings.

Appellant filed a declaration on March 22, claiming that the court's conduct reflected bias in that it had threatened appellant and Goffin with sanctions for not filing proper substitution notices before appellant appeared at the March 18 hearing without counsel but had not been concerned that no substitution of attorney appeared in the record for respondent's replacing Wolter with his current attorney, Javier Bastidas. Appellant took issue with the court "[c]riticizing my attorney for minor issues and threatening both me and my attorney with sanctions, while overlooking serious wrongdoing by respondent's counsel" in Wolter's filing with the court a version of the June 30, 2015 letter that was selectively shortened to omit a threat included in the letter actually sent to Goffin (see p. 6 & fn. 7, ante).²⁵

25 Appellant had appeared at the March 18 hearing without counsel, and when Bastidas asked whether Goffin was still involved with the case, appellant said he was but she could not afford to have him at every hearing. Bastidas said he believed Goffin had said he was appearing in limited scope for purposes of the trial but that he (Bastidas) had not seen any documentation confirming this. The court admonished appellant that she and her attorney were required to file substitutions, not just come in and out of the case, and that sanctions would be imposed if they did not follow the court rules in the future. The declaration appellant filed on March 22 responded to Bastidas's remark about documentation of Goffin's limited scope representation, stating that Goffin had filed a notice of limited scope representation, and served it on respondent's then-attorney, Wolter, on July 8, 2015.

Also on March 22, 2016, appellant filed a petition for writ of supersedeas in this court, seeking a stay of the trial court's custody and visitation order. We issued a temporary stay on April 1, directing immediate resumption of the negotiated 50/50 parental visitation arrangement, formalized in the April 10, 2015 order, pending resolution of the writ petition. Respondent opposed the petition. On July 7, 2016, we denied the petition for writ of supersedeas and dissolved the temporary stay.

On September 20, 2016, we denied appellant's motion for assignment of appellate counsel for the child.

DISCUSSION

I.

Appellant contends there was insufficient evidence of changed circumstances to justify modifying the permanent custody order entered in 2011.

"Although Family Code section 3087 states that an order of joint custody may be modified merely upon a showing that the best interest of the child requires the modification, the Supreme Court has imposed an additional requirement when, as here, a permanent custody order has been entered. '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. [Citation.] In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. [Citation.] Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates "a significant change of circumstances" indicating that a different custody arrangement would be in the child's best interest. [Citation.] Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy." ' (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956 (Brown).) The burden of showing changed circumstances is on the party seeking a modification of the custody order. (Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 738.)" (Anne H. v. Michael B. (2016) 1 Cal.App.5th 488, 496-497 (Anne H.).)

"We review a ruling on a request for modification of a custody order for abuse of discretion. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 14.) 'Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child. [Citation.] "Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' " ' (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 299 [Chalmers].)" (Anne H., supra, 1 Cal.App.5th at p. 501.)

"In reviewing any order or judgment we start with the presumption that the judgment or order is correct, and if the record is silent we indulge all reasonable inferences in support of the judgment or order. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.) Nonetheless, ' "all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." [Citations.] Therefore, a discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. [Citation.]' " (Chalmers, supra, 213 Cal.App.4th at p. 299.)

But "[a] ' "showing on appeal is wholly insufficient if it presents a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice. . . ." [Citation.]' (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.)" (Chalmers, supra, 213 Cal.App.4th at p. 299.) " 'The appellant bears the burden of showing a trial court abused its discretion.' (F.T. v. L.J.[, supra,] 194 Cal.App.4th [at pp.] 15-16.)" (Ibid.)

The proceedings leading to this appeal began in 2012, when respondent sought to change custody on the grounds that appellant had falsely accused him of sexually abusing S. and was trying to brainwash S. into believing she was being abused in his home. It was thus respondent's burden to establish the changed circumstances justifying a change from the permanent custody order entered in 2011. Appellant argues he failed to meet this burden because the changed circumstance relied upon by the court was appellant's coaching S. to believe respondent had molested her and the "only proof in the case was [appellant's] denial and expert testimony that coaching was not possible." In appellant's view, the only "evidence" of coaching was respondent's opinion, which should not be considered evidence because respondent was not an expert. The trial court's disbelief of appellant's evidence was not sufficient, appellant urges, because disbelief of evidence is not the equivalent of affirmative evidence to the contrary. (Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1229.)

We cannot agree with appellant's characterization. The trial court found the sexual molestation allegations were unfounded because the CPS investigators, police, district attorney and Barovsky all so concluded and appellant "failed to present any credible evidence at trial to suggest that the CPS and other investigations into the alleged molestations were defective." The court noted that appellant did not call the CPS workers or investigators as witnesses and found that the single witness appellant presented to challenge the investigations and evaluation was not credible.

The CPS investigation and Barovsky's evaluation support the trial court's conclusion that the molestation did not in fact occur and that appellant caused S. to believe she had been abused. The CPS investigation found the abuse allegations unfounded based on interviews with S. and respondents' other children, as did Barovsky, based on interviews with and observations of each of the children and the parents, as well as interviews with individuals involved with the 2012 investigation and with respondent's former wife. In short, the investigators concluded that S. displayed no physical signs of abuse and none of the behavioral symptoms typically observed in molestation victims, and appeared to be comfortable with respondent, respondent's other children appeared to be well-adjusted, successful and comfortable with him, and respondent's former wife was fully supportive of him and disbelieving of the allegations—and these facts were inconsistent with respondent having abused S.

Having concluded there was no actual abuse, the question was how S. came to report the things she herself, and appellant on her behalf, described. Barovsky's report presented evidence that appellant, through her repeated questioning of S, encouraged S. to believe she had been molested. Appellant's journal, as well as her own statements, were seen by the investigators and Barovsky as reflecting incessant questioning—as Barovsky put it, "almost to the point of interrogating [S.]"—whenever S. returned from time with respondent.

Barovsky's report discussed studies she described as explaining "how mother's repeated questioning of [S.] has most likely led to [S.] incorporating false memories into her belief of what actually happened to her" and stated that "[c]hildren who have been questioned repeatedly often present as identical to children who have been molested." Barovsky herself believed that appellant "unconsciously and unwittingly encouraged [S.] to believe that her father has harmed her," expressly rejecting the hypothesis that appellant acted intentionally.²⁶ Her report also related the views of the CPS workers and police detective who had been involved in this case, some of whom appear to have believed that appellant's conduct was intentional: CPW Laird viewed appellant as "hypervigilant and overly anxious" due to her "honest" belief that S. had been molested, but thought there was "a chance" appellant was coaching S. "whether because she is bringing up the topic as often as she does, or by more direct means"; CPW Harthorn opined that S. had been "coached or influenced" to make allegations against respondent, viewed appellant's comments and journal entries as reflecting an attempt to "generate an abuse narrative" against respondent, believed appellant had taught S. to be "preoccupied with her private parts and associate that with her father," saw appellant's "obsessive focus and determination for [S.] to disclose an abuse narrative" as emotionally abusive toward S., and conjectured that S. initially said something to appellant about her father's "peepee," saw appellant's reaction and "thought saying something like that again would be a funny way to get a reaction from her mother"; Mather related that appellant's conversations with him and with the site director before S.'s first interview gave him the impression she was "selling a story."

26 In rejecting the hypothesis that "mother has made a planned, concerted effort to drive father away from [S.] so she can raise her without him," Barovsky stated, "I do not believe that mother is willing to sacrifice the mental health of [S.] to drive her father away. Mother is very sincere in her desire to raise a happy and healthy child."

Appellant attempted to challenge Barovsky's evaluation and conclusions, as well as the CPS investigation, through her expert witness: Saleem's report, as we have said, was highly critical of both Barovsky and CPS.²⁷ This effort was entirely unsuccessful, as the court found Saleem to be biased and therefore did not credit her testimony (or, presumably, her report). Appellant did not try to discredit the investigations in any other way, such as by calling any of the investigators as witnesses.

27 For example, Saleem noted that in an online profile Barovsky identified her " 'Client Focus' " as " 'Children (6-10) up to adults' " and that S. was four years old at the time of the evaluation. Saleem stated that because Barovsky lacked experience with toddlers, Barovsky turned to Harthorn for advice on how to interpret S.'s doll play, and that Harthorn himself lacked any qualifications to evaluate the matter. Saleem faulted Barovsky for not reporting disclosures of molestation S. made during the evaluation, noting that Barovsky was a mandated reporter and not qualified to investigate sexual abuse allegations herself. According to Saleem, Barovsky reflected bias and incompetence in numerous ways, including falsely testifying that she interviewed appellant's friend Jin Park and that appellant failed to provide contact information for S.'s therapist, ignoring or misrepresenting information about respondent's anger issues, "abusive personality" and past self-injurious behavior, and doubting or ignoring appellant's statements but accepting respondent's. Saleem pointed to numerous errors and inaccuracies in Barovsky's report, such as misstating facts, attributing statements about the parents' psychological testing to Lehmer that Lehmer, testifying at the 2013 trial, denied making and disagreed with, and failure to recognize respondent's "pathology," as evidenced by his past conduct toward women, interference with appellant's relationship with S. and multiple lies to various courts.
Regarding the central issue of whether S. had been coached, Saleem stated that Barovsky "grossly misinterpreted" the research on false memory that she relied upon, for example, by stating that 80 percent of children "assented to false events at initial interviews" when the actual results were that only 44 percent of children (even as young as three or four years) assented to false stories at initial interviews and the percentage decreased to 36 percent at interviews three months later. Moreover, according to Saleem, the studies of the researcher whose work Barovsky discussed involved repeatedly telling children that a given false event had occurred and asking them to visualize details of the event, while there was no evidence in the present case (and Barovsky did not suggest) that appellant was intentionally "attempting to plant false memories."
While this critique raises a significant question whether Barovsky misunderstood or at least overstated the likely effect of appellant's questioning, Saleem's testimony that there are no studies showing false memories can be created in fouryearolds because all the studies involved older children appears to be undermined by her report, which discusses studies she herself described as involving children as young as three or four years. And Saleem's testimony about semantic leakage—which she viewed as making it very difficult to create a false memory in a fouryearold—was about children being directed to lie about something, whereas a "false memory" is experienced by the child as true, not as a lie. (See, e.g., Faller, Interviewing Children about Sexual Abuse: Controversies and Best Practice (2007) pp. 2123.)

The trial court concluded that appellant acted intentionally, fabricating the allegations against respondent.²⁸ This view was based largely if not entirely on the court's assessment of appellant as completely lacking credibility. The single biggest factor affecting this assessment appears to have been the alleged recording of S.'s statements about sexual abuse that appellant never provided to the investigators in 2012: The court found it "illogical to believe that any mother who had such a recording in her possession would not have: (1) provided it to law enforcement officials immediately; (2) provided it to [S.'s] therapist; or (3) at a minimum preserved it and provided it to [CPS]."²⁹ Additionally, the court found appellant undermined her own credibility by presenting an expert witness who the court also found lacked credibility due to the witness's prior personal experience with the evaluator whose report and conclusions she was retained to critique.

28 At the end of trial, the court asked if respondent took the position that appellant intentionally fabricated the allegations. Counsel responded that either appellant made them up in an attempt to get an advantage in the custody dispute and perhaps go to Austria to be closer to her family, or appellant really believed something happened; either way, "maintaining the narrative" despite all the evidence to the contrary, and all the conversation with S. about it, "equates to an abuse by proxy." Counsel stated that Barovsky concluded this was most likely what was happening.

29 The court expressed its concern more vividly in its remarks at the conclusion of the trial, expressing "great concern" about the tape having "never surface[d]." Addressing appellant's attorney, the court stated, "not providing that tape-recording, when you have it, to this court supports that mom intentionally made these allegations up. Not even close. That she just made this up, ran with it, didn't maybe know what would unfold but had to continue running with it. Because if you have a tape-recording, you should certainly be giving it to the people who are supposed to be protecting your child." The court juxtaposed the missing recording with appellant's detailed journal and recording of S. crying when she heard respondent's voice on appellant's voice mail: "Those tape-recordings were direct evidence of [S.'s] statements at the time, and they never surfaced and your client doesn't know what happened to them. But she keeps a detailed journal of everything else. . . . Again, this tape-recording is a compelling piece of evidence to this court, particularly because she played the other." The court rejected the explanation appellant had given at trial—that she did not give the investigators the tape in 2012 because the investigation had already concluded: "No, I don't buy that at all. [¶] You're a mother and your child on tape has told you that you have been molested in horrible, graphic detail? And she's having a conversation and you lose the tape? And you don't bring it to the investigators?" When counsel urged that it was equally likely the tape was relatively innocuous, the court responded, "That's not what your client said. [¶] She's either not being honest, wasn't honest then, isn't honest on the stand now. But either way you cut it, her credibility is really severely, severely undermined, and it's time to put an end to this."

" 'It is the exclusive function of the trial court to weight the evidence, resolve conflicts and determine the credibility of witnesses [citation] and if its interpretation . . . is reasonable, a reviewing court will not disturb the trial court's determination in the matter unless an abuse of discretion is clearly shown [citation].' (Estate of Desmond (1963) 223 Cal.App.2d 211.)" (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1562.) We cannot find an abuse of discretion here. Appellant's concerns about S. being molested were based entirely on S.'s alleged statements to appellant. Appellant kept detailed notes about these and many other things S. did and said and provided this journal to the investigators; she kept a recording of the child reacting negatively to hearing her father's voice and presented it in court. She was not convinced by the conclusions of multiple investigators and the court appointed evaluator that S. was not actually sexually molested. Yet she did not provide a recording she claimed to have of the child herself describing the abuse to CPS or the police during the investigation, to Barovsky, or otherwise. Given appellant's careful documentation of the events in this case, the assertion that she did not know what happened to the recording is indeed difficult to accept. We cannot find the court abused its discretion in finding appellant's credibility undermined.

Additionally, as the trial court noted at the end of trial, there was no way to know how appellant got the information she reported S. having given her, because "none of us were there when she asked the questions and how she asked the questions and what she did." At the conclusion of trial, the court's remarks from the bench indicate it was entertaining the possibility that appellant did not intentionally create the abuse scenario but might have asked S. "probing questions" because she was upset with respondent and, when S. agreed, believed she had to call a therapist, triggering a "snowball effect." But in such a scenario, the court stated, appellant "created the situation by implanting the information in the first place. . . . It may have been an unintended consequence, but somehow that information, very detailed, got in a four-year-old's world, and the only person who could have put it in that world is [appellant]."

The court also particularly noted the incident in which appellant used a "party favor as a prop simulating a man's penis while questioning [S.] about [respondent's] conduct": The court found appellant's "demeanor while describing" this incident "inappropriate given the gravity of the allegations." This comment is consistent with Judge Tang's view of it, at the 2013 trial, as indicative of coaching, although Judge Tang did not make a finding of coaching.³⁰

30 On the prior appeal, we declined appellant's request that we strike a statement in Judge Tang's Statement of Decision on this point. We said, "The Statement of Decision reads, '[appellant] denies any coaching. But her testimony indicates otherwise. [Appellant's] use of a party favor as a prop simulating a man's penis while querying [S.] about [respondent's] possible inappropriate conduct, is an inducement for a child to tell a story that may not be true. [Appellant] testified [S.] was giggling when [appellant] asked [S.] to demonstrate on a prop how [respondent] touched himself. [Appellant's] demeanor on the stand appeared more like describing a bonding moment between mother and daughter rather than a horrific act committed by [respondent].'
"Appellant would have us strike this 'finding' because no expert opined that she coached [S.] or that a prop could influence a child to tell an untrue story. But Judge Tang concluded nothing requiring expert opinion. As appellant recognizes, there was no actual finding that she coached [S.]; there was a common sense observation, based on what was described and appellant's demeanor in describing it, that questioning in this particular manner could induce a false report. Even from the cold record, appellant's testimony reads as Judge Tang described—a child's playful moment with her mother. In any event, this was one of a number of examples the court related to support the ultimate conclusion that appellant was continuing to refuse to accept evidence that her suspicions were unfounded." (I.S. v. D.R., supra, 2015 WL 476046, at p. *20.)

The determination that appellant coached S. to believe her father was molesting her—whether intentionally or in the form of unwittingly influencing the child through repeated questioning—was certainly a sufficient basis for finding changed circumstances. The court found appellant's belief that respondent molested S. "unreasonable" and found that her "persistent claim" of molestation despite numerous contrary findings, including the pediatrician's examination, "raise serious concerns regarding Mother's judgment and motive." The evidence supported a determination that appellant's conduct in this regard was harmful to S. As the trial court said, this was the conclusion of the investigators and Barovsky in 2012, and it was the opinion of counsel for the minor at the present trial. The trial court additionally found that "the claim that [respondent's] two other children, his former girlfriend, . . . and the caregiver . . . were all also sexual victims, which they denied, raises serious questions about [appellant's] capacity to parent [S.]" Given the trial court's conclusions that the sexual abuse allegations were false, created by appellant and instilled in S. through on-going discussion and questioning, it cannot be questioned that the circumstances had changed significantly from those existing before the allegations arose, justifying the change in custody and visitation orders.

II.

Section 3044 establishes a rebuttable presumption that an award of custody of a child to a person who has committed domestic violence against the other parent, the child or the child's sibling is detrimental to the best interest of the child.³¹ Appellant argues that the trial court erred in failing to apply this presumption.

31 Section 3044, subdivision (a), provides, "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence."

At trial, when appellant's attorney began to question respondent about past allegations of domestic violence by him against "various people," respondent's attorney interjected that this was a reference to allegations that had been brought up at each of the preceding trials.³² The court stated, "We're not doing this. Again, we're in a limited remand of the Court of Appeal. Unless there's a 3044 issue, and I'm not aware of any, then it might be relevant. But I'm not aware of any 3044 findings that the Court of Appeal had asked me to—this court to make. Correct?" Appellant's attorney responded, "They have not."

32 As we described in our opinion on the prior appeal, at the outset of the 2012 CPS investigation, appellant emailed CPW Laird a number of documents "suggesting past violent conduct and drug use by respondent":

Appellant now contends that the trial court refused to consider documents that were admitted into evidence and showed respondent's "history of domestic violence, substance abuse, breaking the law, court order violations, and perjury." Appellant notes that these documents include the 2014 declaration of respondent's former wife, "made well within the five years preceding trial." As far as we can determine from the record citations provided, to the extent the other documents pertain to matters related to domestic violence, they relate to incidents that predated the five-year period and were addressed in prior proceedings in this case.³³ Accordingly, the 2014 declaration was the only evidence potentially relevant under section 3044. Appellant's attorney, Goffin, described the declaration as "accus[ing]" respondent "of domestic violence involving [N.L. and respondent's] child [E.]."

33 Several of the citations provided in appellant's brief designate numerous pages of appellant's appendix without specifying which portions of the cited material are actually relevant to the domestic violence issue.

"The clear terms of section 3044 require that a court apply a presumption that it is detrimental to the best interest of the child to award joint or sole physical or legal custody to a parent if the court has found that that parent has perpetrated any act of domestic violence against the other parent in the preceding five years. The presumption is rebuttable, but the court must apply the presumption in any situation in which a finding of domestic violence has been made. A court may not ' "call . . . into play" the presumption contained in section 3044 only when the court believes it is appropriate.' (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1267.)" (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1498 (Fajota).)

Even if we assume that the scope of our remand order did not include consideration of evidence of domestic abuse predating the first trial, it would not have precluded the court's consideration of evidence that domestic violence occurred after the first trial. Significant time had passed by the time of the 2015 trial, and determining whether respondent's request for sole legal and physical custody should be granted, it was appropriate for the trial court to consider circumstances that may have arisen in the interim. (In re B.C. (2011) 192 Cal.App.4th 129, 150-151.) The trial court thus erred in assuming it could not consider any section 3044 evidence, even of conduct that occurred after the first trial, unless our remand order specifically directed it to do so. The question remains whether prejudicial error resulted from this ruling.

The section 3044 presumption applies only "[u]pon a finding by the court" that the party seeking custody has perpetrated domestic violence against the other party seeking custody, the child or the child's siblings of the child or against the child or the child's siblings. (§ 3044, subd. (a).) In the present case, there was no preexisting judicial finding of domestic violence triggering application of the presumption. (See Ellis v. Lyons (2016) 2 Cal.App.5th 404, 416-417 [custody court required to apply section 3044 presumption despite disagreement with Massachusetts court that had previously found father placed minor in reasonable apprehension of imminent serious bodily injury].) Section 3044 would be relevant in the present case only if the trial court found, based on the 2014 declaration, that appellant committed domestic violence within the meaning of the statute. (See Fajota, supra, 230 Cal.App.4th at p. 1491 [court found father engaged in domestic violence but denied restraining order; section 3044 presumption applied].)

The 2014 declaration was filed in connection with a dispute between N.L. and respondent over N.L.'s desire to have G. and E. attend school in Novato, where N.L. had moved with her new husband. After explaining her reasons for wanting to move the children, N.L. described difficulties in co-parenting with respondent due to his anger, involving the children in the parents' conflict and demonstration of "violence and disdain" toward N.L. in front of the children. She related an incident in which appellant became "extremely angry," came to her house without warning and refused to leave; he sat down with E. on his lap and told N.L. that E. could not come back inside until N.L. agreed to talk with him, and left only after she threatened to call the police. N.L. found the event "frightening and disturbing" and stated that it was "not the first incident of this nature."

Appellant asserts that the 2014 declaration was admitted " 'for the truth' " at trial, but the document discussed at the page appellant cites was Exhibit B at trial, described as a fax sent from the San Francisco District Attorney's Office to respondent in August 2012. N.L.'s 2014 declaration was obviously not part of that exhibit.

Appellant's attorney introduced the 2014 declaration in an effort to challenge respondent's credibility on a point unrelated to domestic violence, and expressly stated it was not being offered for its truth. Respondent had testified that he had a very good relationship, and a good co-parenting relationship, with his former wife, and Goffin sought to challenge his credibility with a portion of N.L.'s declaration Goffin said " 'accuses [respondent] of domestic violence involving their child [E.]." The court did not respond to this point. Instead, it turned to a different portion of the declaration that supported respondent's claim that the present litigation had "embroiled not only this one child, but other children, as collateral damage to an ongoing seven-and-a-half year dispute" and said, "So we will certainly look into that as evidence before this court."³⁴ The declaration was not actually admitted into evidence until the end of trial, when Goffin asked the court to enter into evidence "whichever of our exhibits have not yet been entered," including the declaration. At this point, the exhibits were admitted without objection or express limitation.

34 Appellant's attorney introduced the 2014 declaration after eliciting respondent's testimony that he had a very good relationship, and a good co-parenting relationship, with his former wife, N.L. Counsel then asked whether there had been problems since N.L.'s 2005 police report and, when objections were raised, the court asked the relevance of the testimony being sought. Goffin responded that it went to credibility: He wanted to show that respondent's testimony that he currently had a good co-parenting relationship with N.L. was not true through the 2014 declaration, in which N.L. "accuses [respondent] of domestic violence involving their child [E.]" Respondent's attorney and Pendergast, S.'s attorney, objected to admission of the declaration, and Goffin specifically stated it was not being offered for the truth asserted. At this point, the court turned to a portion of the declaration in which N.L. referred to her children having been "brought into [respondent's] litigious life" and "involved in a custody battle"; the court stated, "That's exactly what [respondent] is saying, is that this thing has embroiled not only this one child, but other children, as collateral damage to an ongoing seven-and-a-half year dispute. [¶] So we will certainly look into that as evidence before this court."

In any event, assuming the declaration was in evidence for all purposes, we find no basis for reversal with respect to the section 3044 issue. Appellant's characterization of the court as having refused to consider the declaration because the section 3044 issue was beyond the scope of the remand is somewhat misleading. The court had acknowledged that allegations of domestic violence might be relevant if there was a section 3044 issue but believed this court had not directed it to make section 3044 findings, and asked if this was correct. Goffin agreed that we had not. He did not suggest the presumption applied nevertheless, nor did he ask the trial court to find, based on the incident N.L. described, that respondent committed domestic violence against E.³⁵ Instead, as we have said, when he pointed to the part of the exhibit he viewed as demonstrating domestic violence, counsel limited his purpose to challenging respondent's credibility regarding his portrayal of his co-parenting relationship with his former wife and expressly disavowed any intent to offer the exhibit for the truth of the matter stated.

35 The presumption applies when the party seeking custody "has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings." (§ 3044, subd. (a).) N.L. was none of these. Her declaration described the threat she perceived and fear it created in her but said nothing about how E. reacted to being held on her father's lap during the incident.

The section 3044 presumption applies "upon a finding" that the party seeking custody has perpetrated the described domestic violence. Appellant never asked the court to make such a finding, and does not expressly argue on appeal that the court was required to do so in the absence of any request or explain how the declaration demonstrated domestic violence against E. The incident N.L. described, in which respondent held E. on his lap outside N.L.'s house and refused to allow her to go inside unless N.L. would talk to him, was perceived by N.L. as threatening and frightening. The definition of domestic violence under section 3044 is broad, encompassing " 'a multitude of behaviors which [do] not involve any physical injury or assaultive acts' " (Cueto v. Dozier (2015) 241 Cal.App.4th 550, 562 , quoting Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1464) including " 'conduct that destroys the mental or emotional calm of the other party' " (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424, quoting In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497). But even assuming the described conduct was sufficient to constitute domestic violence against N.L., we have no basis for determining how the incident was perceived by then-10-year-old E.

Moreover, even if the trial court found this to be an incident of domestic violence against E., the presumption established by section 3044, subdivision (a), "may be overcome by a preponderance of the evidence showing that it is in the child's best interest to grant joint or sole custody to the offending parent. (§ 3044, subd. (b)(1).)" (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1055.) In light of the trial court's expressed view that appellant's pursuit of unfounded allegations of sexual abuse amounted to emotional abuse of S. so detrimental as to justify the drastic reduction it ordered for appellant's visitation with the child, it is extraordinarily unlikely the court would not have found a presumption of detriment based on the incident N.L. described outweighed by the evidence that it was in S.'s best interest to award sole custody to respondent. (See In re D'Anthony D. (2014) 230 Cal.App.4th 292, 303 [applying harmless error rule in reviewing denial of request for custody].)

III.

Appellant next argues the trial court acted improperly in finding her expert, Dr. Saleem, was "biased" and "not neutral" on the ground that the expert had been involved in a custody case in which, as in the present case, CPS concluded sexual abuse allegations were unfounded and Barovsky served as the court appointed evaluator. As described above, the trial court refused to allow Saleem to testify regarding Barovsky's report, finding Saleem had a "strong" bias in that she had had "personal experience with this expert who has done a report, and she disagreed with not only the way the report was written, but some of the contents of the report." The court allowed Saleem to testify about matters not involving Barovsky's report. In its Statement of Decision, the court explained that it found Saleem was not credible because "[d]uring her testimony, Dr. Saleem demonstrated soundly that she is biased in this case in favor of Mother and is not a neutral expert. Indeed, Saleem admitted to making similar allegations against the father of her child in a custody dispute."

Appellant argues that the trial court used incorrect legal standards in finding Saleem biased. She argues that because an expert hired by a party is necessarily "not neutral," the trial court's reasoning would preclude any expert testimony, and that "[i]n terms of expert testimony, bias means that a 'particular expert usually or always testifies for one side of a particular class of lawsuit.' "

To be sure, "information that a party retained an expert is relevant to the possible bias of that expert." (People v. Bolden (2002) 29 Cal.4th 515, 552.) And while appellant is correct that bias in an expert witness may be suggested by the fact that the witness testifies most frequently for one side of a given class of lawsuits (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 451; Stony Brook I Homeowners Ass'n v. Superior Court (2000) 84 Cal.App.4th 691, 698), the cases appellant relies upon do not suggest that these are the only factors that can reflect bias in an expert witness, as appellant appears to suggest. Allen (upon which Stony Brook relied) rejected the argument that a statute permitting questioning of an expert witness about compensation and expenses paid for his or her testimony in a particular case set the "outer limit" for inquiry into the witness's practice and finances. In allowing discovery concerning the extent to which the expert worked for the defense, the Allen court pointed to general rules of evidence, including that an expert witness may be cross-examined to the same extent as any other witness (Evid. Code, § 721, subd. (a)) and that, under Evidence Code section 780, " ' "[e]xcept as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (Italics added) . . . (f) The existence or nonexistence of a bias, interest or other motive." ' " (Allen, at p. 451.)

Here, appellant sought to have her expert witness testify about problems the witness found in Barovsky's 2013 evaluation and report. The expert had herself been in a custody dispute which involved allegations that her daughter had been sexually abused; the CPS investigation had concluded the allegations were unfounded; and Barovsky had been appointed to evaluate the issue. The record does not reflect what Barovsky found in that case with respect to the molestation allegations, but Saleem testified that Barovsky ultimately recommended the child spend "more" time with the "primary caretaker," which was Saleem.

Appellant maintains that Saleem could not have been biased against Barovsky based on her role in Saleem's custody case because Barovsky's evaluation "was in favor of the expert." But that ultimate recommendation was not the issue of concern to the court. Saleem acknowledged that she disagreed with the way Barovsky's report was written "[b]ecause I know myself how it is supposed to be done." The purpose of Saleem's testimony, in large part, was to critique Barovsky's evaluation.³⁶ Saleem had been in a position analogous to appellant's—the mother of a child in a custody dispute in which CPS had determined allegations of sexual abuse to be unfounded. She was hired by appellant to assess a custody evaluation performed by the same evaluator whose work Saleem believed had not been done properly in the case involving allegations of sexual abuse against Saleem's own daughter. Additionally, Saleem acknowledged she had been "shocked" at the way CPS handled the information her daughter provided at her interview. Given Saleem's close personal experience with the issues involved in this case and the specific evaluator whose work she was hired to assess, and her negative view of the evaluator's work in her own case, we cannot find the trial court abused its discretion in finding Saleem to be a biased witness.

36 In Saleem's 85-page report, pages 12-75 are devoted to analysis of Barovsky's report, pages 76-83 to the CPS investigation, and pages 84-85 to the parents (appellant's actions and potential risks posed by each parent).
According to appellant's attorney, the purpose of Saleem's testimony was to discuss whether Barovsky's "analysis of coaching was appropriate, whether she had methodological flaws in determining, based on two journal entries, that [appellant] was engaging in a pattern and practice of coaching," and "the possibility of them planting false memories into a toddler through questioning and coaching." Saleem's report states that its purpose was to "detail[] [Saleem's] expert analysis and opinions" on "child sexual abuse, the CPS investigation and custody evaluation, the reasonableness of [appellant's] actions, and the risks to [S.] posed by each parent." (See People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013.)

Appellant argues that even if the court did not err in finding bias, it erred in disqualifying Saleem and excluding her testimony and report because bias goes to the weight of evidence, not its admissibility.³⁷ The trial court did not completely disqualify Saleem from testifying; it precluded her from directly addressing Barovsky's report. Saleem did testify on the major issue at trial—whether a child as young as S. was at the time could have been coached to make the statements she made about molestation, and the effect of appellant's questioning of S. Her testimony addressed the major premises underlying respondents' and various investigators' views that appellant coached S., including the age at which children begin to notice their genitals, the propriety of parents giving young children "proper terminology" for their "private parts," the effect of an incident like the one involving the party prop and the significance of medical examinations failing to reveal physical evidence of abuse. She also testified about other factors bearing on the custody decision such as the effect on S. of the parties' respective living situations. Had the trial court found Saleem's testimony persuasive, it would have undermined critical aspects of Barovsky's evaluation even without specifically addressing Barovsky's work in this case.

37 Appellant relies upon People v. Barney (1992) 8 Cal.App.4th 798, 812, which involved the particular context of a Kelly-Frye hearing to determine the admissibility of DNA evidence; it was claimed that the expert witnesses who testified about general scientific acceptance of DNA analysis were biased. Noting that the trial court did not " 'rest its decision on the testimony of a sole or crucial witness who has a significant financial or professional interest in promoting the new technique," Barney stated, "[c]learly there was some level of self-interest underlying the testimony of the two FBI experts, but that point went to the weight to be attributed to the testimony rather than its admissibility." (Barney, at p. 812; see People v. Reilly (1987) 196 Cal.App.3d 1127.)

With respect to the limitation the trial court imposed on Saleem's testimony and its rejection of her report,³⁸ the distinction between weight and admissibility of evidence is not particularly meaningful in the circumstances of this case. The court clearly believed Saleem brought a high degree of bias to her analysis of Barovsky's report— referring to it at the end of trial as "stunning"—and therefore rejected Saleem's views on the matter. As a practical matter, it makes no difference whether the evidence was excluded or admitted but rejected as the product of bias.

38 It is not clear from the record whether the trial court actually excluded Saleem's report. Appellant filed the report before trial and respondent moved to strike it, as well as much of the material it relied upon. At the outset of the trial, the court denied the motion in limine to the extent it was based on hearsay objections because experts are permitted to rely upon hearsay; the court stated that what the expert relied upon could affect the weight it would give the expert's opinion. At the end of the discussion about Saleem's prior experience with Barovsky on voir dire, after stating that Saleem's bias "taints any testimony that she is going to give," the court continued, "So the report is—" but was interrupted by Saleem asking if she could say something. Respondent's attorney asked for Saleem to be dismissed and the court acceded to appellant's attorney's request for Saleem to be able to testify on matters not involving Barovsky's report.

IV.

In a related contention, appellant challenges the trial court's comment, in its Statement of Decision, that "[b]y proffering Saleem as an 'expert' Mother again undermines her own credibility with the court." Appellant argues there is no authority for the trial court making an "adverse credibility finding" against her due to her adducing Saleem's testimony."

Most of appellant's discussion of this contention consists of argument that the court abused its discretion in finding Saleem lacked credibility and failing to consider her critique of Barovsky's report and does not address the propriety of the court's inference about appellant's credibility. In support of her argument that the court lacked authority to find her own credibility undermined by that of her proffered expert witness, appellant provides only the following quotation: " 'A party does not vouch for the truth of every statement of the witnesses he calls, even of the friendly witnesses.' (Krist v. Eli Lilly and Co. (7th Cir. 1990) 897 F.2d 293, 296 [(Krist)].)"

The point in Krist was that a party could argue that its own witness was mistaken in parts of the witness's testimony—there, due to inaccurate recollection. (Krist, supra, 897 F.2d at pp. 296-298.) Guenther v. Armstrong Rubber Co. (3d Cir. 1969) 406 F.2d 1315, 1317 (Guenther), cited in Krist, stated that " ' "[t]here is no sound reason why the familiar doctrine that a party may contradict, though not impeach, his own witness, should not, if the circumstances are consistent with honesty and good faith, be applied when he is himself the witness." ' " In both of these product liability cases, other evidence introduced at trial contradicted the witness's recollection of certain details of the item alleged to have caused injury, and the courts discussed the plaintiff's ability to argue a position inconsistent with the arguably misremembered details. (Krist, at pp. 295-296 [witness remembered taking red DES pills but other evidence showed defendant did not manufacture red DES pills at the time and other manufacturers might have]; Guenther, at pp. 1315-1317 [plaintiff remembered exploded tire as a "black wall" but other evidence showed it was a "white wall"].) The courts' point was that a party is not precluded from arguing that aspects of its witness's testimony were incorrect and offering an explanation for the witness's mistake.

We fail to see the relevance of these cases to appellant's contention. Appellant did not differ with any of Saleem's testimony. The court, as we have said, viewed Saleem as not only biased but egregiously so. It's statement that appellant's credibility was undermined by her choice to present Saleem as her expert witness reflects a view that Saleem's bias was so obvious that using her as a witness suggested appellant was attempting to manufacture a case against respondent.³⁹ The court's statement that appellant "again" undermined her own credibility confirms that this was not the only reason the court found appellant's credibility lacking. The court expressly found appellant was not credible because she never produced the recording she claimed existed of S. disclosing molestation, which the court viewed as a critical piece of evidence no mother would have failed to provide when the allegations were being investigated. The court also found appellant was not credible in denying that she coached S. when the evidence indicated the contrary.⁴⁰

39 The court expressly discussed at trial its view that appellant was "sponsor[ing]" witnesses biased in her favor," noting that evidence appellant had submitted showed that Park's daughter was considered a "sister" to S., which reflected a "closeness . . . that this court can look at as a bias, particularly given your expert." The court stated, "it seems to be a theme, particularly because of your expert. [¶] That was pretty stunning to the court, I will say, [counsel]. Because not only had she had a disagreement with Ms. Barovsky, but then she discloses that she herself has reported allegations of child abuse concerning her daughter to CPS and that she is shocked with what they did with the information her daughter gave. [¶] That's not an unbiased witness. That's someone who clearly has an issue with CPS. She said she's written an article. I didn't ask her if it was going to be peer reviewed."

40 The court had commented at the end of trial that it had "so many problems with [appellant's] credibility to begin with, that tape being one of them," and noted that no one knew "how [appellant] got this information out," "how she asked the questions and what she did."

We can find no abuse of discretion in the court's citing appellant's choice of an expert witness the court saw as patently biased as one of its reasons for finding appellant lacked credibility.

V.

Appellant additionally challenges the inferences the trial court drew regarding the recording of S.'s disclosures. In a contention titled "Failure to Produce Tape is Evidence of Nothing," appellant cites Evidence Code section 413, which permits the trier of facts to consider a party's "willful suppression of evidence" in determining what inferences to draw from the evidence. Appellant argues there was no factual predicate for a claim of suppression or destruction of evidence and therefore no basis for drawing the inference allowed by Evidence Code section 413. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 992 ["it is prejudicial error to instruct the jury on willful suppression of evidence when there is no evidence to support the instruction"], overruled on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 662.) Appellant reiterates that disbelief of evidence is not the equivalent of affirmative evidence to the contrary. (Viner v. Sweet, supra, 117 Cal.App.4th at p. 1229.)

At trial, after appellant described a tape she had played at the 2010 trial in which S. cried when she heard respondent's voice on appellant's voice mail. The court asked appellant about the tape she said she had made of S. first disclosing molestation to her. Appellant testified that she did not give the tape to investigators because "the investigation was already concluded" and that she did not think she still had them, and when asked by respondent's attorney whether there was a reason she had not provided the tapes at the beginning of the investigation, appellant said "no."

At the end of trial, the court stated its view that "not providing that tape-recording, when you have it, to this court supports that mom intentionally made these allegations up." The court clearly found difficult if not impossible to believe that a mother who had a recording of her child disclosing "severe sexual abuse" by her father "in horrible, graphic detail," not only against her but also against his other children—"direct evidence of [S.'s] statements at the time"—would not provide the recording to "the people who are supposed to be protecting your child." The court was particularly disturbed by appellant's failure to produce the alleged recording in light of the facts that appellant had saved and brought to court the recording of S. crying and kept "a detailed journal of everything else."⁴¹ In its Statement of Decision, the court discussed appellant's failure to produce the recording as evidence that she fabricated its existence and that she did not have a good faith belief that S. had been molested.

41 The court stated, "not providing that tape-recording, when you have it, to this court supports that mom intentionally made these allegations up. Not even close. That she just made this up, ran with it, didn't maybe know what would unfold, but had to continue running with it. Because if you have a tape-recording, you should certainly be giving it to the people who are supposed to be protecting your child. . . . She's made other recordings. She brought the one recording to the court where the child was crying. That was something that appeared to be fine for her to do, but when it comes to a recording of disclosures of sexual abuse, that tape-recording never surfaces despite being requested. . . . Tell me what a reasonable inference is, then, from that, from the failure of her to produce this explosive recording of this child disclosing abuse, severe sexual abuse, at the hands of [respondent], not only to her, but to his other children. . . . [¶] . . . [¶] Because the conclusion that I am reaching, listening to all of the evidence and observing the witnesses who your client has sponsored, is that she made this up; that she made up these allegations. It's beyond serious. These are criminal allegations that are the worst allegations that someone could make, and her explanation is she doesn't have the tape-recording anymore. Well, they didn't ask for the recording. According to that, they asked for the recording and she was going to give it. [¶] So unless you're saying you want me to believe that everything that doesn't fit within your client's case, it was someone else's mistake. That's what I'm hearing. That's been the theme of the case. [¶] . . . [¶] Those tape-recordings were direct evidence of [S.'s] statements at the time, and they never surfaced and your client doesn't know what happened to them. But she keeps a detailed journal of everything else."
When counsel suggested he believed the tapes did not exist, the court responded that appellant testified that they did and she did not know where they were. Counsel repeated his belief that the tapes never existed, then said his client was telling him this was wrong and there was a tape.

Appellant argues that the trial court erred in inferring from the absence of the recording that appellant fabricated the allegations of abuse, apparently because there was no affirmative evidence that appellant suppressed or destroyed the recording. But there was circumstantial evidence—appellant's conduct in claiming she had a recording of S.'s disclosures and then failing to provide the recording to investigators, therapists or the court—to support the court's view that the tape never existed and that appellant invented both the recording and the allegations themselves.

The missing recording was not the only basis for the court's conclusion that appellant "invented" the abuse allegations. The court also noted that CPS, the police and Barovsky had all concluded the allegations were unfounded; that appellant alleged respondent had molested E. and G., G. had molested S., and respondent had engaged in inappropriate sexual activity with B.W. and the children's caretaker in S.'s presence, but the investigators found no evidence of such behavior and E., G., B.W., and the caretaker all denied it; that appellant did not offer credible evidence that the investigations were defective; and that Pendergast reported that S. felt safe and comfortable in respondent's home.

VI.

Appellant next contends the court's order that she undergo therapy was improper because it did not contain the express findings required by section 3190, subdivision (d).

Section 3190, subdivision (a), allows the court to "require parents or any other party involved in a custody or visitation dispute, and the minor child, to participate in outpatient counseling with a licensed mental health professional, or through other community programs and services that provide appropriate counseling" for not more than one year, if the court finds both that "[t]he dispute between the parents . . . poses a substantial danger to the best interest of the child" and that "[t]he counseling is in the best interest of the child." Subdivision (d) of the statute provides that the court, "in its finding, shall set forth reasons why it has found both" that "[t]he dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child" and that "[t]he financial burden created by the court order for counseling does not otherwise jeopardize a party's other financial obligations." Counseling pursuant to section 3190 "shall be specifically designed to facilitate communication between the parties regarding their minor child's best interest, to reduce conflict regarding custody or visitation, and to improve the quality of parenting skills of each parent." (§ 3191.)

At the end of trial, Pendergast recommended that the court order co-parent counseling and the court stated that it was not sure it had legal authority to do so because "co-parent counseling, counseling under section 3190, includes the minor," the court was "not sure" it could make the findings required under the statute and it did not "see the source of money" for counseling. The court responded more conclusively when respondent's attorney, moments later, reminded the court that respondent also wanted therapy for appellant: The court stated that appellant could engage in therapy voluntarily but the court would not make the findings required under section 3190 because it did not have enough information to do so and because the statute applied to therapy including the child, which the court did not want to put S. through. The court's Statement of Decision then included in its orders, "Pursuant to Family Code Section 3190, the court finds that this dispute between the parents and Mother's unsubstantiated sexual molestation allegations have created a substantial danger to the best interests of the minor. Mother shall complete at least six months of weekly individual psychotherapy." The court further ordered that appellant's visitation would increase upon the successful completion of 26 weeks of therapy and would increase further upon completion of an additional 26 weeks.⁴²

42 These provisions, verbatim, had appeared in respondent's proposed Statement of Decision, and in the court's tentative ruling. In objections to the court's tentative ruling, appellant argued that there was "no justification" for the order of weekly psychotherapy; that she should get "credit" for the year of therapy she voluntarily engaged in from January 2013 to January 2014; that the order was contrary to the court's ruling from the bench that it would not order psychotherapy; that if the court ordered psychotherapy it should define "substantial danger" and order combined therapy for appellant and S., and that because appellant's Medi-Cal would not cover therapy, the insurance respondent maintained for S. should be used to pay for it.

The court's order clearly fails to comply with the requirements of section 3190. The order recites the conclusory finding that the parents' dispute and appellant's unsubstantiated allegations created a substantial danger to S.'s best interests but does not set forth the reasons for this finding as required by section 3190, subdivision (d). This deficiency might be deemed harmless if it were the only problem with the order, as the court's reasoning concerning the harm to S. from the parties' dispute and appellant's conduct is evident throughout the Statement of Decision. But the order includes no finding that counseling is in the best interest of the minor—a point the court appeared to question in its remarks at the end of trial—and no finding concerning the financial burden of the counseling order. Regarding the latter, subdivision (c) of section 3190 provides that "if the court finds that the financial burden created by the order for counseling does not otherwise jeopardize a party's other financial obligations, the court shall fix the cost and shall order the entire cost of the services to be borne by the parties in the proportions the court deems reasonable." The trial court here does not appear to have considered how the financial burden of its order would affect appellant's finances, much less provide reasons for concluding that the burden would not jeopardize other financial obligations. Remand is required.

Moreover, because the court expressly conditioned increases in appellant's visitation on successful completion of counseling, the visitation orders must also be reconsidered. If, upon proper consideration of the statutory factors, an order for counseling is not appropriate, appellant cannot simply lose the promise of first one and then two overnight visits in addition to her eight-hour visit on alternate Saturdays.

The court's reduction of appellant's visitation was drastic. Prior to July 2015, S. was with appellant 50 percent of the time. The court altered this arrangement to permit appellant a total of only 11 hours with S. in each two-week period. Initially, on respondent's ex parte motion and without a hearing, the court reduced appellant's visitation to 8 hours every other Saturday and three-hour visits on Monday and Wednesday evenings;⁴³ after the trial, the weekday component of the visitation order was reduced to only one evening each week, the court stating that appellant had not been exercising her full visitation.⁴⁴

43 There appear to have been several irregularities with respect to the ex parte motion. Respondent's moving papers presented a misleading picture to the court. Respondent stated that the court had ruled he had not sexually abused S. but that appellant had been subjecting the child to "years of sexual abuse" by attempting to label him a sexual predator, and quoted findings from Judge Tang's 2013 order to the effect that appellant's suspicions of respondent were not supported, her anxiety was damaging to S., and S. was at risk for emotional damage continuing into adulthood if appellant did not accept that respondent was not a sexual predator. But there had been no judicial determination that the molestation allegations were false: We reversed Judge Tang's order because the judge erroneously believed Judge Mahoney had previously adjudicated the allegations of molestation predating 2012 and therefore refused to consider evidence by which appellant sought to challenge the CPS investigation and Barovsky's evaluation. And respondent's reliance upon Judge Tang's findings was highly inappropriate in light of our reversal, as the findings concerning appellant's "ongoing unsubstantiated molestation claim" were necessarily premised on a judicial determination that had not been made.
Further, there was a sharp factual dispute between the parties as to the events of July 5, when respondent came with the police to appellant's apartment, respondent asserting that appellant initially answered the intercom, then refused to respond further to the police and appellant insisting (with subsequent corroboration from her friend, Honey Hubbard) that she was not home when the police came because she expected respondent to call the police and did not want to subject S. to this. Appellant later tried to draw the court's attention to an irregularity that appears to explain why she expected respondent to summon the police. Among the documentation respondent provided to the court with his motion was the letter of June 30 in which his attorney made clear that respondent would not permit appellant the threeweek vacation with S. to which she believed she was entitled. As described earlier, the version of that letter received by appellant's attorney expressly warned that failure to comply with respondent's decision would "[place S.] in an extremely precarious situation in which law enforcement may be involved." The version of this letter filed with respondent's motion to modify custody did not contain this warning.
As also described earlier, the court resolved the factual dispute in respondent's favor solely on the papers. According to appellant and her attorney, at the August 17 hearing, the court initially indicated it would deny respondent's motion, apparently having forgotten its July order, then after reading from what appeared to be the case file, reaffirmed the July order with a comment that was described by counsel as saying that if appellant had not yet bonded with daughter, another three months would not make any difference. If such a comment was in fact made, there is certainly nothing in the record to support the suggestion that appellant had not bonded with S.; all the evidence is to the contrary.

44 Appellant testified that there was a period when she had trouble finding a bus from Fairfax back to San Francisco and talked to S. on the phone on Mondays but visited on Wednesdays and Saturdays.

This reduction in visitation went well beyond what was suggested by S.'s attorney (visitation every other weekend from Friday afternoon until Sunday night or Monday morning, with a weekday dinner on the off weeks), despite counsel's report that S. expressed wanting more time with her mother. The drastic reduction in time was also contraindicated by Barovsky's opinion, in 2012, that "further reduction in time between mother and S. may have a negative impact on S."⁴⁵

45 Barovsky stated: "Given that [S.] has lived the majority of her life with mother, mother has been her primary parent until August 2012 when her custody was changed to father. I believe any further reduction in time between mother and [S.] may have a negative impact on [S.] [S.] may feel emotionally abandoned by mother, confused and angry with father. Mother may feel victimized by the court system, which would not help her gain the insight into her actions needed to improve her parenting choices."

The court's order was premised on its finding that appellant knowingly made false allegations of child sexual abuse against respondent with the intent to interfere with respondent's contact with the child. Under section 3027.5, subdivision (b), the court "may order supervised visitation or limit a parent's custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent's lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, . . . shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state's policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020."

Here, the court stated that the July 2015 order was necessary to protect S.'s best interests as appellant's behavior "continued to be harmful to [S.'s] welfare." The Statement of Decision detailed the court's reasons for concluding that that the abuse allegations were unfounded, that appellant did not have a reasonable basis for believing S. was molested and that appellant coached S. It did not specify what evidence supported its conclusion that appellant was engaging in the same sort of harmful behavior in July 2015 and made no reference to behavior at the time of trial in October 2015. We understand section 3027.5, subdivision (b), to mean that the limitation on custody or visitation must be necessary to protect the child under the currently existing circumstances, not as a punishment for past conduct.

For over a year prior to our remand on the prior appeal, the parties were operating under a voluntarily adopted 50/50 timeshare agreement, indicating that respondent was not overly concerned about appellant's influence on S. We are aware of no suggestion in the record that S. was suffering any behavioral or emotional difficulties during this period; the only evidence of S. experiencing such difficulties was in appellant's and her friends' descriptions of changes in the child's behavior after appellant's time with S. was reduced by the July 2015 ex parte order.⁴⁶ Pendergast reported that S. had healthy relationships with each of the parents and was comfortable with each of them; her concern about appellant was based on appellant's past pursuit of the molestation allegations and the perception that appellant still believed "something happened," not on indications that appellant was currently discussing such matters with S.⁴⁷

46 As described above, Hubbard testified that the since the July 14, 2015, order, S. had been "more anxious" and upset by small things, particularly when it was time to leave appellant's home, and that S. had told her "[m]any times" that she wanted to spend more time with appellant and that appellant was her "best friend"; Jin Park testified that the previously "very happy," "outgoing and friendly and playful" child "seemed to be more withdrawn towards [appellant]" and "oftentimes very clingy; more clingy than I remember her to be."

47 The ex parte motion by which respondent obtained the initial reduction in appellant's visitation was also based largely on past events. Respondent was concerned that appellant would "continue to persuade, coach, and encourage [S.] to believe her Father is a sexual predator" if she had an uninterrupted three-week period with S., but offered little evidence that appellant was currently attempting to exert such influence. Respondent stated that appellant had "subjected her daughter to years of sexual abuse through her attempts to label [respondent] as a sexual predator," but his specific examples of "unfounded allegations" and "coaching" referred to incidents that occurred in 2012: the "inappropriate and suggestive use of props to simulate male genitalia" reflected in appellant's journal and the report of " 'pinching' [S.'s] vagina" at the emergency room.
The recent issues respondent raised were the events of July 5, discussed earlier, and "questionable behavior" by appellant and her attorney that he believed was not in S.'s best interests. One of the described instances of the latter appeared to have more to do with respondent's convenience than detriment to S.: Respondent stated that in April, appellant refused to pick S. up from school because she was "working on 'timesensitive documents,' " then later in the day filed several ex parte motions, which forced respondent to cancel his work to pick S. up. Another was the occasion on which appellant's attorney had dinner with appellant and S. after a settlement conference, as to which respondent stated that because appellant and her attorney were friends, respondent "[could] only assume" this incident was "indicative of how they had proceeded." The third was that appellant's attorney was requesting over $100,000 in attorney fees and respondent assumed appellant must be working for him "in some respect" to assist in filing documents.

The trial court's order, in providing for increases in appellant's visitation upon completion of specified amounts of counseling, anticipated that appellant would be able to move beyond the behavior the court found detrimental to S. Considerable time has now passed. On remand, whatever the outcome of any reconsideration as to the need for a counseling order consistent with the requirements of section 3190, the court shall carefully consider the current circumstances to determine what visitation plan is necessary to protect S.'s welfare within the context of the state policy that children should have "frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship." (§ 3020, subd. (b).)

VII.

Asserting that respondent offered no evidence that appellant implanted the idea of abuse in S.'s mind and the only evidence at trial showed she did not, and that N.L.'s 2014 declaration shows respondent perpetrated an act of domestic violence against E., appellant asks this court to find that an award of sole or joint custody to respondent would be detrimental to S.'s best interests and enter an order granting appellant sole legal and physical custody or, at a minimum, reinstating the 2011 permanent order of joint legal custody and sole physical custody to appellant.

Appellant offers In re B.G. (1974) 11 Cal.3d 679, 699, as authority for her request. The court in that case denied the parties' request to render a final custody decision rather than remanding to the trial court, explaining that the issue of custody is committed to the discretion of the trial court. "Only in an exceptional case, in which the record so strongly supported a party's claim to custody that a denial of that claim by the trial court would constitute an abuse of discretion may an appellate court itself decide who should be granted custody; plainly the present case does not fall under that exception." (Ibid.) As this opinion should make clear, the same is true in the present case.

VIII.

After we issued the remittitur on the prior appeal, which provided for appellant to recover costs on the appeal, appellant filed a motion for attorney fees and costs in the trial court, seeking a total of $114,513.90 in attorney fees and costs. Appellant raises two related issues concerning the trial court's denial of this motion: She urges that the court erred in denying her discovery concerning respondent's income, thereby depriving itself of a factual basis for ruling on the motion, and that the court failed to consider relevant factors in denying the motion.

Section 7605, subdivision (a), provides: "In any proceeding to establish physical or legal custody of a child or a visitation order under this part, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a government entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding."

When a request for attorney fees and costs is made, the court must determine "whether an award of attorney's fees and costs [under this section] is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs." (§ 7605, subd. (b).)

In connection with the motion for attorney fees, appellant sought an order allowing discovery concerning respondent's income.⁴⁸ She argued that respondent had a history of concealing income, including claiming in 2009 that he had lost his job and was unemployed when in fact he had resigned from the job having already signed a contract with a new employer; earning $78,937 in 2008, $95,393 in 2009 and $7,412 in January 2010, but then claiming to be unemployed in February and March 2010, just ahead of hearings on child support in March; filing a bankruptcy petition in 2011 that was so "replete with undeclared income and assets" that the trustee ordered him to file an amended petition and noted the "possibility of perjury charge"; and, after a 2009 court order requiring the parties to exchange income tax statements, refusing to provide the information to appellant and claiming he believed he was only required to provide it to the court.

48 Specifically, appellant sought an order permitting "depositions of respondent and B.W. regarding respondent's employment, contract work, business activities, income and related matters; inspection demands for pay stubs, checks, invoices, time records, forms 1099 of all types; subpoenas to employers, contractors, banks, and other sources of income; order for completion and execution and production to [appellant] of IRS Form 4506-T, Request for Transcript of Tax Return, for tax year 2014, including forms pertaining to companies owned by Respondent."
Appellant initially filed an ex parte application for an order shortening time for hearing the discovery motion; the court denied this application and set a hearing for May 28, with the motion for attorney fees to be heard on June 15. In denying the request for a hearing, the court stated, "DCSS case contains all financial information and speculation that Respondent has hidden income is insufficient basis for this request." A hearing was set for May 28, but no hearing is documented in our record. On July 22, the court denied the motion for discovery and ordered the parties to file current income and expense declarations.

Opposing the motion for discovery, respondent denied the alleged concealing of income and stated that the Department of Child Support Services and the court were in possession of tax returns, pay stubs and income and expense declarations respondent had provided over the years of this litigation. Respondent stated that he would also have attorney fees to be considered and proposed the issue be resolved after the trial.

The court denied the motion for discovery, ordering the parties to file current income and expense declarations but finding that no further discovery was indicated. It does not appear that respondent filed an income and expense declaration in response to this order. Appellant's income and expense declaration described her occupation as "President of S-Corporation, Employment Agency," listed average monthly income of $700 and average monthly expenses of $583, and stated that she had paid her attorney $2,000 and owed him $95,000.

At trial, respondent testified that he qualified for the Sargent Shriver Custody Project, meaning his income did not exceed an amount 200 percent above the poverty line. He testified that he would have a W-2 for January 2015, which he thought was for vacation pay from 2014, when he worked for Solar City earning $16.83 per hour, and a 1099 at the end of 2015, and that he did not have savings or anything that could enable him to pay the attorney fees appellant was seeking. Asked about a profile on a website that listed his income as $75,000 to $100,000, respondent testified that he did not recall putting this information on the profile and that it was not true income. When asked for an estimate of the commissions he earned at Solar City, respondent testified that he did not recall the exact amount; when pressed by the court for a ballpark estimate, respondent offered to look at his email to find the correct amount.

After initially agreeing to a break to enable respondent to look at his email, the court pointed to the statement in N.L.'s declaration in her Marin County case, which appellant had put in evidence, that respondent owed $100,000 in child support arrears. Stating that it was "satisfied there is no money to pay any legal fees" and believed respondent was "beyond tapped out," the court asked appellant's attorney if he had a good faith basis to believe respondent had millions of dollars "squirreled away" and, when counsel said he did not, declared questioning concluded on the issue. Denying the motion for fees and costs, the court stated, "I don't find that [respondent] has the ability to pay given his severe financial debt engendered primarily by this ongoing litigation that is in and of itself honestly abusive." The Statement of Decision reads, "[Appellant's] request for Attorney Fees is hereby denied. The court finds that [respondent] lacks the ability to pay the amount [appellant] requested."

"A discovery order is normally reviewed under the deferential abuse of discretion standard. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186; Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1161.)" (Pirjada v. Superior Court (2011) 201 Cal.App.4th 1074, 1085.) " '[A] reviewing court generally will not substitute its opinion for that of the trial court and will not set aside the trial court's decision unless "there was 'no legal justification' for the order granting or denying the discovery in question." ' " (Ibid., quoting Krinsky, at p. 1161.) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. ([In re Marriage of] Connolly [(1979)] 23 Cal.3d 590; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.)" (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)

Appellant argues that the trial court denied her any discovery regarding respondent's income and when respondent failed to submit an income and expense declaration pursuant to the court's order and then refused to testify about his income at trial, the court "indulged him and did not require him to answer." She urges that the court denied her motion for attorney fees without any evidence of respondent's income on the sole basis of N.L.'s declaration that respondent was $100,000 in arrears on child support. The declaration, appellant maintains, says nothing about respondent's actual income and proves only that he is unwilling to pay child support and N.L. has been unwilling to seek judicial relief.

The court did have some evidence of respondent's income: He testified that he qualified for the "Sargent Shriver Custody Project," which meant his income did not exceed 200 percent of the poverty level. The Sargent Shriver Civil Counsel Act provides for appointment of legal counsel "to represent low-income parties" in specified civil matters, including child custody, through pilot projects developed by the Judicial Council. (See Gov. Code, §§ 68650, 68651.) Government Code section 68651, subdivision (b)(1), provides that "[i]n order to ensure that the scarce funds available for the program are used to serve the most critical cases and the parties least able to access the courts without representation, eligibility for representation shall be limited to clients whose household income falls at or below 200 percent of the federal poverty level. Projects shall impose asset limitations consistent with their existing practices in order to ensure optimal use of funds."⁴⁹ The combination of this demonstrably low income and respondent's substantial child support arrears support the trial court's view that respondent lacked the financial ability to pay appellant's attorney fees.

49 Respondent's trial brief stated that he earned between $4,000 and $4,500 per month.

Appellant argues that by denying her request for discovery, the trial court deprived her of the opportunity to prove an essential element of her claim for fees. She offers no authority, however, for her suggestion that she was entitled to discovery regardless of the trial court's determination that discovery was not warranted. Appellant made clear to the trial court that she believed respondent was concealing income. The trial court was not persuaded. Again, evaluation of the parties' credibility was a matter for the trial court.⁵⁰

50 Subsequent to the denial of appellant's motion for attorney fees, on January 20, 2016, respondent filed a request for modification of child support, seeking an order of child support based on the fact that S. would now be in his care approximately 97 percent of the time. Respondent's income and expense declaration, filed on February 4, 2016, indicated that he was to begin work for State Farm Insurance on March 1, working 40 hours per week and earning a gross salary of $3,500 per month. His new job would not provide health benefits and once it began the children would lose their current Medi-Cal coverage. His last month's income was listed as $840 from public assistance and $649 in food stamps, and he listed estimated average monthly expenses of $7,106.

IX.

Appellant next argues that the trial court failed to consider relevant factors in declining to award attorney fees. She points to section 2030, subdivision (a)(1), which provides that in proceedings for dissolution of marriage, nullity of marriage or legal separation, and any proceeding subsequent to entry of a related judgment, "the court shall ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees . . . ." She further urges that under section 2032, subdivision (b), financial resources are only one factor to be considered and the court is to take into consideration, as relevant, the parties' circumstances described in section 4320, which sets forth the circumstances courts are to consider in ordering spousal support. (§ 2032, subd. (b).)⁵¹ The circumstances described in section 4320 include factors such as earning capacity, marketable skills, age, and health that go beyond actual income, assets and liabilities. (§ 4320.)

51 Section 2030 is "expressly applicable only to marital proceedings" (Kevin Q. v Lauren W. (2011) 195 Cal.App.4th 633, 641) and therefore is not directly applicable to the present case. Appellant's motion for attorney fees and costs was appropriately filed pursuant to section 7605, which governs such awards in proceedings "to establish physical or legal custody of a child or a visitation order" under the Uniform Parentage Act (§ 7600 et seq.). Because section 7605 was "deliberately drafted by the Legislature to be identical to section 2030," it is appropriate to look to sections 2030 and 2032, which supplements section 2030, as well as section 4320 (to which section 2032 refers), in evaluating the parties' respective abilities to pay. (Kevin Q., at pp. 643-644.) --------

The purpose of an award of attorney fees and costs in this context is to "ensure parity of legal representation in the action." (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 974.) The court must "determine how to apportion the cost of the proceedings equitably between the parties under their relative circumstances." (Id. at p. 975.) "In assessing a party's relative need and the other party's ability to pay, [the court] is to take into account ' " 'all evidence concerning the parties' current incomes, assets, and abilities.' " ' " (Ibid., quoting In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 406.) The court has "considerable discretion in fashioning a need-based fee award," but "the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion." (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.)

Appellant argues that the court here failed to consider the various factors necessary to support an informed exercise of discretion. The record demonstrates that the court did not engage in a detailed analysis; it did not have precise numbers reflecting respondent's financial situation. But the reason the court proceeded as it did is obvious: It concluded respondent had no ability to pay appellant's attorney fees.

Appellant complains that the court did not consider "(1) the nature of the litigation; (2) the factual and legal complexity of the action; (3) how much time the parties expended; (4) whether particular investments of time were reasonable; (5) the expertise and skill of counsel; (6) the intricacies and importance of the litigation; (7) the necessity for skilled Family Law specialists; (8) responsibilities undertaken by counsel and (9) the parties' respective needs and ability to pay." All but the last of these are factors bearing on the amount of an attorney fees award (see In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870; In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 296), a matter not relevant where no award is made. The court was required to consider the parties' respective needs and ability to pay, and would have abused its discretion if it awarded fees in such a way that one party was assured representation while the other was left without. (See Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 242.) Here, however, the court denied the fee request on the basis that respondent, with income no greater than 200 percent of the poverty line, no savings or other resources from which to pay appellant's attorney fees and debt of at least $100,000, simply could not pay. The trial was entitled to believe respondent's testimony concerning his income and savings, and the statements in N.L.'s declaration.

X.

Appellant's final contention is based on her perception that the trial court was biased against her. She urges that if further proceedings are required in this case, they be conducted before a different judge.

According to appellant, the trial court refused to follow a "prior mandate" from this court, "requiring a writ to compel it to do so—which the trial court essential[ly] threw back in this court's face in its Statement of Decision." It is not clear exactly what "prior mandate" appellant believes the trial court refused to follow. The writ to which she refers is apparently our order of October 14, 2015, which stayed the trial court's orders of July 14 and August 17, 2015, ordered immediate resumption of the previously existing 50/50 parental visitation arrangement and denied appellant's request for a writ of mandate directing the trial court to grant her request for sole custody. The trial court orders appellant challenged in her writ petition resulted from respondent's ex parte application for a change in appellant's visitation based on events that postdated our opinion on the prior appeal and we had not issued other orders in this case prior to July 2015. While our order required resumption of the 50/50 timeshare in place of the reduction in appellant's visitation ordered by the trial court, the order was expressly made "[p]ending final resolution of the custody case." As no explanation accompanied our order, there is no basis for appellant's conclusion that it "issued specifically because no evidence supported the July 14 and August 17, 2015 Orders." Appellant's assertion that the trial court "threw [this order] back in this court's face" presumably refers to the statement in the Statement of Decision that the court "confirms that the July 14, 2015 custody modification, was necessary to protect [S.'s] best interests as Mother's behavior continued to be harmful to [S.'s] welfare." This characterization is also baseless: We did not rule on the ultimate propriety of the change in custody but rather stayed the temporary orders pending the outcome of the trial.

Appellant also bases her claim of bias on assertions that the trial court declined to accept evidence that was accepted by the judge in the prior trial and repeatedly disparaged appellant and her attorney. The former point refers to the court's refusal to accept evidence of appellant's expert's criticisms of Barovsky's evaluation and report. As discussed above, the trial court's exclusion of this evidence on the basis that Saleem was biased was within its discretion. The main example appellant cites to illustrate her claim that the trial court disparaged her and her attorney is the court's expression at the end of trial of skepticism as to appellant's credibility based on her failure to produce the recording of S. describing abuse and presentation of an expert witness the court found to be biased. Appellant's disagreement with the court's views does not alter the fact that these were comments based on the state of the evidence. The other comments to which appellant points simply reflect the court's attempt to curtail nonresponsive answers to questions.

DISPOSITION

The matter is remanded for reconsideration of the order for counseling under section 3190 and reconsideration of the visitation order. In all other respects, the judgment is affirmed.

/s/_________

Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.