Hess v. BogoleaHess v. Bogolea
Hess, representing himself, appeals from the order awarding Bogolea sole custody, raising 17 claims of error. We conclude Hess has failed to demonstrate reversible error on any of his claims. We affirm.
BACKGROUND
A. Previous Litigation
Hess and Bogolea were never married and have one child together, H., a son born in October 2013. Jeff petitioned to establish his parental relationship in January 2016. Since that time, the parties have been engaged in protracted litigation over custody and visitation.
The penultimate court proceeding ended with an order modifying custody and visitation filed April 6, 2021. Since 2013, parenting time fluctuated between supervised visitation for Hess and an equal, week-on/week-off timeshare. The equal timeshare arrangement generally remained in place until December 2019 after Bogolea presented evidence that Hess had tested positive for cocaine and lacked stable housing. The court ordered no visitation for Hess for a short period, then ordered greatly reduced, supervised visitation.
At a three-day long cause hearing in January 2021, the court heard evidence, among other things, that Hess had no positive drug tests after 2019, was engaged in ongoing counseling addressing anxiety, PTSD, depression, and substance-use triggers, but continued to reside with his mother, Caroline Cruz, whose home contained numerous firearms—an arrangement the court found problematic given Hess‘s status as a convicted felon prohibited from possessing firearms. The court also noted concerns about Cruz‘s conduct in the parties’ co-parenting dynamic, describing Cruz as having a “caustic and meddlesome nature.” The court also criticized Bogolea‘s admitted unauthorized access to Hess‘s phone to obtain his drug test results.
The court further required each parent to facilitate nightly telephone or video contact between H. and the other parent, and provided that all prior orders not inconsistent with these provisions would remain in full force and effect. One of the prior orders was that neither parent was to drink alcohol while H. was in their custody.
B. Current Litigation
On October 2, 2021, shortly after the parties began the full, alternating-week parenting schedule contemplated by the final stage of the 2021 step-up plan, Hess was stopped and arrested for driving under the influence with seven-year-old H. in the car. H. was not properly restrained; he was in the front seat with a booster seat. Bogolea soon after filed for emergency custody of H., which was granted, and a trial date was set on the issue of custody modification.1 Ahead of the trial, the court appointed child custody evaluator Kelli King to conduct an evaluation regarding custody of H.
Trial was conducted intermittently over five nonconsecutive days in 2024: March 3, April 30, May 29, July 3, and September 10. Hess represented himself
Officer Willingham testified that while investigating Hess for DUI, Hess registered preliminary alcohol screening results showing a blood-alcohol content of .079% and .086%. Officer Willingham also detected an odor of alcohol on Hess and observed he had red, watery eyes and slurred and mumbled speech. Field sobriety tests also showed indicators of impairment. Officer Willingham explained that Hess‘s account of having consumed just two drinks over a three-hour span and finishing his last drink several hours ago did not support those readings. A blood sample drawn about two hours later showed a blood alcohol content of .05%. The Tuolumne County District Attorney decided not to prosecute Hess, citing insufficient evidence.
Hess testified about the night of his DUI arrest. He stated he left the house he shared with his then-girlfriend that night to escape a domestic violence incident in which he was the victim. He took H. with him to remove H. from the “abusive situation.” He acknowledged that by drinking that night he violated the court order prohibiting both parents from drinking alcohol with H. in his custody. Video evidence showed Hess using profanity and verbally abusing his then-girlfriend before leaving the house.
Bogolea testified that she called Tuolumne County Sheriff‘s dispatch that night to relay what Hess‘s girlfriend had told her, which was that Hess and the girlfriend had argued, that Hess had left with H. in the car, and that he had been drinking. She also testified the girlfriend had asked her to make the call to law enforcement. Hess stated that Bogolea and the girlfriend conspired to have him falsely arrested that night.
King submitted a written report, which was admitted into evidence. She testified that although Hess maintained Bogolea was alienating H. from him, her evaluation found the opposite. Hess and his mother, Cruz, made alienating statements to H. and punished him for discussing Bogolea, and no evidence showed that Bogolea coached H. on what to
The trial court granted Hess‘s in limine motion under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) to exclude case-specific hearsay from King‘s testimony, including H.‘s out-of-court statements to her, unless independently proven. However, the court later found that Hess‘s own cross-examination of King elicited much of that excluded material, including H.‘s statements to King, and the court considered that evidence to the extent Hess himself introduced it.
H.‘s therapist, Sarah Collie, testified consistently with King‘s account, describing H.‘s anxiety and altered demeanor when discussing Hess and testifying she observed no signs that Bogolea had coached him. Collie noted that during video visits between Hess and H., Hess would fail to recognize when H. wanted to change the subject. She observed H. to be more assertive with Bogolea than with Hess. While discussing Hess‘s DUI arrest, H. cried intensely and curled up on the floor.
Following the 2021 custody order, Hess did not complete two court-ordered forms of counseling. The parties were ordered into co-parenting counseling with Aimee Schultz. Bogolea testified they attended one session, Hess canceled the second, and Hess refused to pay his portion of the copay for the third session so the counselor refused to see them. Hess was separately referred to reunification therapy with Loretta West, which began around August or September 2021 and continued “sporadically” until the end of December 2021 when Hess refused to go anymore. Hess testified he stopped seeing West after 10 visits “for a bunch of reasons,” including that he could not afford it.
The trial court issued its statement of decision on October 10, 2024.2 The court found that Hess‘s blood alcohol content was “.07” or “.08” on the roadside test, and since Hess said his last drink was at 11 p.m., this “would mean his blood alcohol level was falling at the time of the” blood test. The court stated it was thus “very likely that he could have been at .08 or more when driving.” The court also stated: “The [district attorney] decided not to file charges, and it very well could be because they saw what this Court saw: He was in fact leaving a domestic violence situation. It‘s a justification, but it does not mean it was the right choice. And it still put [H.] in danger. Additionally, [Hess] was not following court orders in deciding to drink that night while [H.] was in his care. If [Hess] stopped drinking at 11 p.m., he had to have had more than two drinks to have a .07 or .08 by 2:43 a.m., almost 4 hours later. [Hess] was certainly intoxicated when he was caring for [H.] and video evidence showed he was slurring his words.”
The court found the DUI arrest, combined with King‘s alienation findings and the brevity of the alternating-week schedule before it was interrupted, constituted a sufficient change in circumstances to warrant modification. To that point, the court found an immediate transition to 50/50 custody “would be traumatic for a child who was having trouble with his father respecting boundaries on a video call.” The court awarded Bogolea sole legal and physical custody, ordered Hess into individual psychotherapy addressing substance use and boundaries, ordered conjoint therapy for Hess and H. as a precondition to resumed visitation. It set out a graduated return to unsupervised visitation
On November 4, the court ordered that its statement of decision become the order after hearing, and Hess appeals from this order.
DISCUSSION
A. Principles of Appellate Procedure
” ‘A judgment or order of the lower court is presumed correct[...] and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is appellant‘s burden to overcome the presumption of correctness. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)
A judgment or order ordinarily may be reversed or modified on appeal only for prejudicial error. Trial court error is prejudicial only if it resulted in a miscarriage of justice—where it appears reasonably probable a result more favorable to appellant would have been reached but for the error. (
Appellant‘s burden also includes the obligation to present cogent argument supported by legal analysis and citation to the record on each point raised. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277; United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United Grand Corp.).) This requires more than simply stating a bare assertion that the judgment or order is erroneous and leaving it to the appellate court to figure out why; it is not the appellate court‘s role to construct theories or arguments that would undermine the judgment or order and defeat
B. Issues
1. Right to Fair and Timely Trial
The hearing in this case lasted five days, spread out over six months. Hess asserts the “extended delays and fragmented scheduling” violated his “right to a fair trial.” He states in conclusory fashion, without citing any facts, that the delay prevented him from presenting a “cohesive case, recall[ing] testimony accurately, and respond[ing] effectively to the opposing party‘s claims.” He also claims, also without citing any facts, that witness memories faded and evidence was lost. These bald assertions lacking any citation to the record or developed argument fall well short of demonstrating error. (United Grand Corp., supra, 36 Cal.App.5th at p. 146.)
2. Admission of Hearsay (Sanchez)
Hess next complains the trial court “erred in admitting and relying on a custody evaluation that was based on inadmissible hearsay, in violation of People v. Sanchez (2016) 63 Cal.4th 665 [(Sanchez)].” He again fails to demonstrate error.
In Sanchez, the California Supreme Court clarified when an expert may rely on hearsay, and whether such hearsay can be related to a jury. The Court stated “[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so,” but “cannot ... relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Id. at pp. 685–686, italics omitted.) Consequently, testimony relating ” ‘case-specific facts about which the expert has no independent knowledge,’ ... unlike testimony about non-case-specific background information, is subject to exclusion on hearsay grounds.” (People v. Veamatahau (2020) 9 Cal.5th 16, 26, italics omitted.) “Although Sanchez is a criminal case, it also applies to civil cases ... to the extent it addresses the admissibility of expert testimony.” (People v. Bona (2017) 15 Cal.App.5th 511, 520; see also In re Marriage of Lietz (2024) 99 Cal.App.5th 664, 673 [“the Sanchez rule concerning state evidentiary rules for expert testimony applies in civil cases“].)
Hess asserts King relied on various hearsay statements in her report, including letters from Bogolea‘s friends and family, text messages provided by Bogolea, and statements from non-parties. But even if this were true, this does not constitute reversible error. Hess overlooks that the trial court stated in its statement of decision that it considered all case-specific hearsay Hess elicited but excluded all other case-specific hearsay not independently proven. Hess cites nothing in the record showing the court did not do just that, and thus he has failed to show the court erred.
3. Custody Evaluation Was Biased, Inaccurate, and Lacked Foundation
Hess argues King‘s evaluation was “biased, inaccurate, and lack[s] foundation, resulting in prejudice.” He says King relied only on Bogolea‘s evidence and ignored his, which shows a “one-sided approach” that “undermined the neutrality of a court-appointed evaluator.” He contends the trial court erred in admitting King‘s report into evidence and relying on it because it contained hearsay and was biased. This claim fails partly for the same reason as the previous claim. That is, the court stated it was not relying on case-specific hearsay not independently proven, and nothing shows the court did otherwise. Moreover, Hess does not even attempt to show a reasonable probability of a different outcome absent the admission of King‘s report. (
4. Ex Parte Communications
Hess contends that King; King‘s attorney, Eric Emanuels; and Bogolea‘s attorney, Julie Salkeld, engaged in impermissible ex parte communications with one another.
By way of background, King retained Emanuels to represent her after she was issued an order to show cause for failing to appear on the third day of trial despite having been personally served with a subpoena. The court discharged the OSC once King appeared and confirmed she was prepared to resume testifying.
With some enumerated exceptions, ex parte communications are prohibited in child custody proceedings between a court-appointed child custody evaluator and the attorney for a party. (
5. The Trial Court Was Biased for Denying Accommodations
Hess argues the trial court erred by denying him reasonable accommodations, in violation of the Americans with Disabilities Act (ADA) and his right to due process and a fair trial. He claims he has a “documented traumatic brain injury and speech impairment, which slow his speech and require additional time to formulate questions, particularly during cross-examination.” However, he cites only his mother‘s statement to the court during trial that Hess‘s “disability makes it a little hard to read and think.”4 He does not cite anything to show what kind of disability he has or how it affects him. He cites
None of the pages Hess cites show that the court was impatient with him. For example, in one instance, Hess tried asking a witness about a video, and the court interrupted to say that they were not going to spend time on the video and asked him to move on to his next topic. In another instance, Hess was looking for a document to show a witness, and the court said he did not have to provide the document and instead could just testify that he provided it. The court then said he could move on to his next question and testify to that fact at the appropriate time. None of the cited portions of the record demonstrate the court was impatient or disrespectful toward Hess. Instead, they show the court appropriately controlling the flow of the trial and interrupting only to guide Hess as necessary to ensure a fair trial for all parties. In fact, there was one instance in the trial during Salkeld‘s questioning of a witness where Hess asked for a brief pause to go through a report to find where Salkeld‘s questions were coming from, and Salkeld objected, calling it a stall tactic. The court said, “I‘m going to give him a minute, Ms. Salkeld. [¶] Go ahead, look.”
More fundamentally, Hess does not explain specifically how the trial court‘s alleged failure to accommodate his disability affected the trial. For example, he does not explain how he was unable to thoroughly examine or cross-examine witnesses, make objections, or address issues with the court. Our review of the entire trial record shows Hess was able to ask all the questions, raise all the issues, and present all the arguments he wanted. Accordingly, he has failed to show reversible error.
6. Judicial Bias
Hess contends the court was biased against him for three reasons. First, he asserts the court instructed him to “move on” or told him “next question” during his questioning
Many of the cited instances instead show the court prompting Hess to ask his next question after the court made an evidentiary ruling. In one instance, Hess asked King if certain letters she received were hearsay, and the court said, “That‘s a legal conclusion. Next question.” In another, the trial court sustained its own hearsay objection to one of Hess‘s questions and prompted him to ask his next question. The other cited instances are similar in that they reflect the court managing the trial in a regular, even-handed manner.
For his second assertion of judicial bias, Hess reproduces the ADA violation argument that he raised in his fifth claim of error. We have already rejected this.
Third, Hess claims the court showed bias by expressing “personal opinions and disparaging remarks” in its written ruling. He cites the court‘s finding that Hess “sees conspiracies everywhere.” This is a factual finding, not an expression of a “personal opinion.” And while it is indeed a negative finding for Hess, nothing in the record shows the court intended to disparage Hess with this finding.
We reject these arguments.
7. Denial of Right to Cross-examine Remote Witness
Hess contends he was denied his right to properly cross-examine King while she testified remotely because he was unable to show her exhibits. He cites pages in the record where this purportedly happened but does not describe any of these instances. As it turns out, none of those pages show anything of the sort. We have reviewed the entire record ourselves, and there was no instance in which King was unable to view an exhibit Hess was questioning her about. Hess‘s claim is meritless.
Hess contends the trial court erred “by relying on speculation, personal opinion, and unsubstantiated allegations of intoxication to limit [his] custodial rights.” He argues the court‘s finding that he was “certainly intoxicated when he was caring for [H.]” the night he was arrested for DUI.
He cites the district attorney‘s letter declining to file charges and records from the Department of Motor Vehicles reinstating his driver‘s license, asserting that they “confirmed that [his] blood-alcohol content was below the legal limit ... and that there was insufficient evidence to support any criminal charges for DUI or child endangerment.” He also argues that the court‘s reverse extrapolation regarding Hess‘s blood alcohol content at the time he was driving was outside a lay factfinder‘s competence.
But even if these points were valid, Hess‘s claim fails because he does not even attempt to show prejudice. That is, he does not try to explain how there is a reasonable probability of a different outcome but for these allegedly erroneous findings.
9. Denial of Mistrial Motion
Hess unsuccessfully moved for a mistrial on September 10. He based his motion on grounds of admission of inadmissible evidence, ex parte communications that took place without his knowledge, witness coercion, inability to effectively cross-examine a witness, judicial bias, and scheduling trial dates too far apart. He contends the denial of his motion was error. He fails to show prejudicial error.
A mistrial is the termination of a trial before completion, on order of the judge, for error too serious to be corrected. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1249.) A ruling on a mistrial motion is reviewed using the deferential abuse of discretion standard of review. (Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 785.)
10. Scope of the Custody Evaluation
Hess asserts the trial court erred “by failing to properly establish the scope and review period of the child custody evaluation.” He contends: “Under
The trial court here issued an order appointing King to perform “a full child custody evaluation under the statutory authority of
Hess is simply incorrect that the court failed to set the purpose and scope of the evaluation. He complains that the court did not set a specific time period for the evaluation, contending that the evaluation should have been limited to matters occurring after October 5, 2021, the date Bogolea filed for emergency custody. But he cites no authority for the proposition that the trial court was required to set a specific period. Since the court did not set that time period, King was allowed to consult evidence from before October 5, 2021. We also observe that the court directed King to “[e]valuate the history of the family relationships,” which would allow King to review evidence from before October 5, 2021, since H. was born in 2013. In sum, the trial court properly set the purpose and scope of the evaluation, and nothing shows that King exceeded the scope.
11. Filing of the FL-326 Form
A person appointed a child custody evaluator must complete and file with the court clerk‘s office a “Declaration of Private Child Custody Evaluator Regarding Qualifications” using form FL-326 before beginning work on the evaluation. (
Hess maintains on appeal that King did not file a FL-326 form before beginning work in this case. But in making this contention, he ignores the court‘s finding that King submitted the form for filing. By ignoring this finding, he supplies no reason why we should not defer to it. (In re A.F. (2016) 3 Cal.App.5th 283, 289 [issues of fact and credibility are questions for trial court, not appellate court].)
12. Piqui‘s Law
Hess asserts the court‘s order requiring that he complete ten family therapy sessions with H. before having visits with H. outside the therapist‘s office violates Piqui‘s Law. Piqui‘s Law is codified in
Hess provides no developed argument for how therapy sessions with H. in a therapist‘s office are prohibited by this statute. He asserts that Piqui‘s Law prohibits the court from conditioning visitation on successful participation in therapy, but the text of the statute does no such thing. To be sure, the statute bars certain types of therapeutic treatments, but it certainly does not generally prohibit therapy as a condition of visitation. We reject the claim.
Hess unsuccessfully moved twice to recuse Judge Hallie Gorman Campbell. He contends these denials were erroneous. We cannot review this claim in this appeal because “[t]he determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate ... filed and served within 10 days after service of written notice of entry of the court‘s order determining the question of disqualification.” (
14. Speculative Findings
Hess contends the trial court‘s decision, taken as a whole, reflects the judge‘s personal opinions and speculation rather than record-grounded fact finding. He reprises the blood alcohol content extrapolation argument from his eighth point and then extends the same theory to a string of specific lines in the statement of decision: the court‘s characterization of Hess‘s litigation conduct as “tactics,” its statement that his refusal to sign a blanket therapy records release may “not be beneficial to [Hess],” its description of his objections as resembling “conspiracies” or “attacks on authority,” its finding that a video call in which Hess exceeded a time limit showed H. “having trouble with his father respecting boundaries,” and an allegation that the court confused Hess‘s stated wish to change H.‘s school with an unrelated custody matter involving a different child. Hess frames each of these as either unsupported speculation or improper punishment of his lawful exercise of procedural rights (motions to strike the evaluation, objections to disclosure, cross-examination), rather than permissible credibility assessments or characterizations a factfinder is entitled to draw from the evidence and the litigant‘s own conduct at trial.
Hess does not argue or demonstrate that any of these claimed errors were either unsupported by the record or prejudicial. Specifically as to Hess stating he wished to change H.‘s school, this fact appears in King‘s report. These claims therefore fail.
Hess argues the trial court erred by removing all physical and legal custody of H. from him “without clear and convincing evidence of harm or a substantial change in circumstances.” This argument fails because the clear and convincing evidence standard does not apply here.
“In an initial custody determination, the trial court has ‘the widest discretion to choose a parenting plan that is in the best interest of the child.’ ” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31–32.) When there is a final custody determination already in place, a request to modify custody requires the trial court to apply the changed circumstances rule, under which a party seeking to modify the permanent custody order can do so only if they demonstrate “a significant change of circumstances” so affecting the child that that modification is essential to the child‘s welfare. (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956; Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.)
Hess leans on Santosky v. Kramer (1982) 455 U.S. 745 and similar cases to posit that the trial court needed “clear and convincing evidence” to remove custody. But Santosky and its line of cases govern the termination of parental rights in juvenile dependency proceedings, which is an entirely different type of proceeding than what we have here. (Id. at pp. 768–769 [holding that state may not completely and irrevocably sever parental rights unless it supports its allegations by at least clear and convincing evidence].) Hess is relying on the wrong standard, and he thus fails to demonstrate error on this claim.
16. Witness Tampering
Hess contends Bogolea‘s counsel, Salkeld, tried to tamper with King as a witness, and he contends the trial court erred in failing to address it. His claim is based on Salkeld‘s alleged ex parte communications with King about making a report to the
King failed to appear on the third day of the hearing in this matter, May 29, and the court issued an order to show cause for her. King filed a declaration ahead of the hearing on the order to show cause and explained that she was not personally served with a subpoena to testify on May 29, and also that she was afraid to testify because someone had been intimidating her. She said she knew Hess was a convicted felon who served four years in prison for armed robbery, and she knew Hess and Cruz were associated with a man named Nate Smith who is an activist for “father‘s rights.” Cruz admitted to King that Smith was advising them and that Smith was “an advocate against ‘corrupt family court practices.’ ”
On April 30, Smith was in the courtroom with Hess and Cruz and he sat in the gallery. Smith‘s eyes “remained fixed on” King as she testified, which made her feel intimidated. She testified that during a break in the proceedings, Hess walked by her in the hallway and intentionally “brushed against” her, which she perceived as intimidation. After the April 30 court date, King found negative reviews and defamatory statements online about her from Smith. She stated she called the Tuolumne County Sheriff‘s Department to report Smith as she was afraid for her safety. Attached as an exhibit to King‘s declaration was an email from Salkeld to King about reporting the intimidation King had been experiencing to the sheriff‘s department.
Hess asserts, without any reasoned argument, that the communications between King and Salkeld about King being intimidated “constitute improper witness influence and meet the statutory definition of witness tampering. (
17. “Unauthorized Advocacy Constituting Reversible Error”
After the court discharged the order to show cause, the court allowed Emanuels to remain at the hearing on King‘s behalf. While Hess was cross-examining King, Emanuels lodged objections. Hess contends the trial court committed reversible error by allowing Emanuels to “remain in the courtroom” and “actively object” as Emanuels had “no formal appearance or designation as counsel.” This is plainly wrong. Emanuels was King‘s counsel of record, and the court recognized him as her attorney. There was no alleged “unauthorized advocacy.”
DISPOSITION
The trial court‘s November 4, 2024, order is affirmed. Respondent shall recover her costs on appeal.
SNAUFFER, J.
WE CONCUR:
DETJEN, Acting P. J.
MEEHAN, J.