Marriage of G.A. and K.A. CA5

Filed 1/27/22 Marriage of G.A. and K.A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re the Marriage of G. and K. A.

K.A., F080718

Respondent, (Super. Ct. No. 17CEFL03616)

v.
OPINION
G.A.,

Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Robert
Mangano, Judge.
Moran Law Firm, LLP, Amanda K. Moran and Janay D. Kinder, for Appellant.
No appearance for Respondent.
-ooOoo-
In this child custody matter, appellant G.A., the children’s father (Father), appeals
from the trial court’s denial of his motion to remove a court-ordered requirement that his
custody or visitation time with his children be supervised.1 Since Father is a person who
must register as a sex offender, the standard set forth in Family Code section 3030 was
applicable to the resolution of his motion. Under Family Code section 3030, subdivision
(a)(1), “[n]o person shall be granted physical or legal custody of, or unsupervised
visitation with, a child if the person is required to be registered as a sex offender under
Section 290 of the Penal Code where the victim was a minor … unless the court finds
that there is no significant risk to the child and states its reasons in writing or on the
record.” (Fam. Code, § 3030, subd. (a)(1), italics added.) In the proceedings below, the
trial court found that Father had failed to convincingly prove there would be no
significant risk to the children if the supervision requirement were removed, and
therefore the trial court denied the motion. Father now challenges that ruling. Our
review of the trial court’s custody ruling is under the deferential abuse of discretion
standard. In applying that deferential standard on the record before us, we are unable to
conclude the trial court abused its discretion under the circumstances. Accordingly, the
order of the trial court is affirmed.2
FACTS AND PROCEDURAL HISTORY
Original 1998 Offense Requires Father to Register as Sex Offender
In 1998, Father pleaded guilty to rape by use of drugs of a 14-year-old girl, a
felony violation of Penal Code section 261, subdivision (a)(3). He also pleaded guilty to
burglary, a felony violation of Penal Code section 459. Father was sentenced to a prison
term of six years eight months. He was released early from prison on parole in 2001 and

1 We note that no respondent’s brief has been filed herein. We shall proceed to
consider the appeal based on Father’s opening brief under the record provided to us.
(Cal. Rules of Court, rule 8.220(a)(2).)
2 Although we affirm the trial court’s determination, we note that Father is not
precluded from making a subsequent request in the trial court to remove the supervision
requirement, if he believes he is able to make a more adequate showing under Family
Code section 3030.

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discharged from parole in 2002. As a result of the conviction for committing rape against
a minor, Father was and is required to register as a sex offender pursuant to Penal Code
section 290.
After Release From Prison, Father’s Marriage and Children
Shortly after his release from prison, appellant was married to K.A., the children’s
mother (Mother). They had four children together during their marriage: R.A., born in
2002; N.A., born in 2005; V.A., born in 2006; and G.A, born in 2013. In recent years,
Mother and Father were separated, and Mother’s involvement in parenting became
relatively limited, while Father took on a much more significant role in raising the
children. In fact, Father asserted that he has been the children’s “sole caregiver.” As of
2018, Mother’s residence was a homeless shelter, during which time she was not
employed and without a car, so it was difficult to visit the children.
New Charges Against Father in 2016
On December 30, 2016, Father was arraigned under criminal case No. F16907695
in the Fresno County Superior Court. The charges alleged against Father at that time
were (1) violation of Penal Code section 261, subdivision (a)(3) (rape by use of drugs)
and (2) violation of Penal Code section 261.5 (unlawful sexual intercourse with a minor).
Thus, the 2016 allegations against Father asserted the identical type of offense as had
occurred in 1998—i.e., rape by use of drugs against a minor.
On February 16, 2018, a preliminary hearing was held before the Honorable Arlan
L. Harrell. At that preliminary hearing, as summarized by the trial court in the
subsequent child custody hearing, “[t]wo witnesses were presented by the District
Attorney’s Office, and three witnesses presented by [Father]. At the conclusion of the
evidence [at the preliminary hearing], [Father] was held to answer on both counts.” On
March 7, 2018, Father was charged in an “Information” with rape by use of drugs, in

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violation of Penal Code section 261, subdivision (a)(3), and unlawful sexual intercourse
with a minor, in violation of Penal Code section 261.5, subdivision (c).
Mother Files for Divorce
On June 26, 2017, about six months after the new charges were filed against
Father, Mother filed a petition for dissolution of marriage.
Custody Hearings Before Judge Zepeda
The dissolution proceedings led to the necessity of determining issues of child
custody and visitation. In the course of such proceedings, it was recognized that Family
Code section 3030 applied, which was first addressed in this case by Fresno County
Superior Court Judge Francine Zepeda. On August 14, 2017, Judge Zepeda preliminarily
ordered that the children reside with Father, with Mother having visitation every
Saturday. On September 21, 2017, the parties were provided with a copy of Family Code
section 3030. At that time, in view of the requirements of Family Code section 3030 and
the pending criminal charges against Father, Judge Zepeda ordered that Father’s custody
time with the children must be supervised by a third party at all times. D.P. (Father’s
girlfriend) and J.C. (Father’s mother) were approved to serve as third-party supervisors.
Father would have the right to bring a subsequent motion under Family Code section
3030 to seek to overcome the presumption stated in that section. At a later hearing on
November 21, 2017, Judge Zepeda clarified that Father would be allowed to take and
pick up the children to and from school unsupervised.
On April 9, 2018, a hearing was held before Judge Zepeda to consider a motion by
Father to remove the supervision requirement regarding Father’s parenting time with the
children. Judge Zepeda ruled that the supervision requirement would not be lifted. In
light of the still pending criminal charges that were not yet tried or resolved, it was held
that Father had not rebutted the presumption under Family Code section 3030. In so
ruling, Judge Zepeda commented from the bench: “Without the pending charge, I would

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find that you had rebutted the presumption. But with the pending charge, I’m having a
problem with finding that you have rebutted it.” On May 25, 2018, after the parties
participated in mediation, a child custody and visitation order was entered by Judge
Zepeda. The order confirmed that Father has joint legal and sole physical custody of the
minor children, subject to the supervision requirement.
The 2016 Criminal Charges Against Father Dismissed
On May 16, 2019, the 2016 criminal charges against Father were dismissed,
without prejudice, on a motion by the district attorney approximately one week prior to
the date of trial.
New Motion Filed by Father Under Family Code Section 3030
On June 14, 2019, Father filed a motion to remove the requirement of third-party
supervision of his child parenting time. An evidentiary hearing on that motion was held
on December 12, 2019, before Fresno County Superior Court Judge Robert Mangano (the
trial court). In support of his motion, Father argued that the supervision restriction should
be removed because the 2016 criminal charges had been dismissed. Additionally, Father
testified at the hearing that he has never done anything to endanger his children, nor
would he ever do so. He claimed to be innocent of the 2016 charges. He asserted he is a
good father to his children, with whom he has a close relationship. As further support for
the motion, Father’s girlfriend and mother, who served as third-party supervisors of
Father’s visits with the children, each testified that Father appeared to be a good, attentive
and caring father and never did anything inappropriate. Finally, Father’s three oldest
children provided declarations to the trial court stating that they feel completely safe with
their father and would prefer to have the supervised visitation lifted.
A court-ordered “Tier 3” mediation resulted in a Child Custody Recommending
Counselor Report (report) being prepared and submitted to the trial court and parties prior
to the hearing on the motion. The report was prepared by Robert Preston, as the child

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custody counselor. The report noted that Mother’s position was one of deference to the
trial court on whether or not to leave the supervision requirement in place; however,
Mother expressed some concern that since Father was allegedly dishonest about certain
things stated in his declaration, she was not sure that he was being honest in his denial of
the 2016 charges. On the main issue of whether Father’s custody of his children should
be unsupervised, the report cautiously favored Father’s position. The report stated the
counselor’s recommendation as follows: “The main issue of consideration for this case is
whether it is in the children’s best interest to have unsupervised visits [with] the father.
The counselor finds it highly suspicious that the father has faced similar charges related
to inappropriate sexual behavior years apart. Certainly the counselor can understand how
a previous conviction for a sex crime can create a situation in which individuals might
exploit this issue against the father, and that this history can possibly influence a response
from the criminal justice system in how allegations are pursued. [However,] [t]he father
did not offer explanation regarding the suspicious circumstance but simply offered
argument that the most recent criminal charges were dismissed. There may very well be
plausible explanations for the separate, but similar, cases. The counselor is unaware of
these explanations.… Currently, the criminal case has been dismissed and the children
presented a clear preference for a custody arrangement with the father.[3] All of the
children are comfortable with having unsupervised visits with their father and they
universally deny any issues of concern have occurred in the past.… The counselor

3 While the children indicated they are comfortable with Father, that was not the
case concerning Mother. The counselor reported the children “universally find the
mother’s boyfriend odd, creepy, or generally off putting.” As to Mother’s situation, the
counselor further noted in his report that “the living situation provided by the mother
includes sharing a single living area with multiple adults. This provides limited space or
privacy for the children, and is likely inappropriate for overnight visits. The counselor
will note that mother has, for years, been unable to obtain residential or financial
stability. She continues to have no means of transportation. These issues of instability
may be difficult to overcome if they are connected to longstanding mental health issues.”

6.
cautiously recommends that the requirement for supervised visits is not necessary at this
time, if the court can find justification in response to [Family Code section] 3030.”
(Original underscoring.)
Trial Court’s Ruling on Motion
On January 6, 2020, after considering the evidence and argument, the trial court
issued its written order denying Father’s motion. In explaining its ruling, the trial court
relied on the fact that the 2016 charges had gone through the process of a preliminary
hearing to examine the evidence, which resulted in Father being required, under a
reasonable or probable cause standard, to answer and stand trial.4 Further, the trial court
noted that Father “was arrested and charged with the same specific sex offense: rape by
use of drugs … committed against a minor.” Further, the trial court observed the charges
were dismissed “without prejudice” and the statute of limitations had not expired. The
trial court held that “notwithstanding the fact that the criminal allegations were
dismissed,” under the circumstances “they can be considered in the determination of
whether there is a significant risk under Family Code [section] 3030[, subdivision] (a).”
As the trial court further explained: “Based on the nature of the same relatively unique
criminal allegation, rape by use of drugs, again allegedly against a minor victim, with
sufficient evidence to satisfy the Ingle standard at the preliminary hearing, it would be
proper to utilize this information as a factor in the significant risk analysis.”
Thus, the trial court found the 2016 allegations to be a factor on the issue of
whether a significant risk existed under Family Code section 3030. The trial court then
weighed and considered the remaining evidence, but found it was inadequate to make a

4 Sufficient cause to require the accused to answer or stand trial requires the
magistrate at the preliminary hearing to find there is reasonable or probable cause that the
public offense has been committed. (See Williams v. Superior Court (1969) 71 Cal.2d
1144, 1147; Pen. Code, § 872; see also People v. Ingle (1960) 53 Cal.2d 407, 412–413
(Ingle).)

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definite assessment of whether there would be no significant risk to the children if the
supervision requirement were removed. The trial court stated its conclusion as follows:
“The evidence submitted by [Father] provides no basis to make a reasonable assessment
of significant risk as required by the Legislature in Family Code [section]
3030[, subdivision] (a). [¶] … [¶] This Court has received and considered the evidence
presented in this case, observed the witnesses and their demeanor, judged the credibility
of witnesses, and determined what weight to afford to the presented evidence. The Court
finds [Father] has failed to satisfy the Family Code [section] 3030[, subdivision] (a)
standard by a preponderance of the evidence,[5] and his request to remove the supervised
visitation requirement is therefore denied.”
Father’s Appeal
Father timely filed his notice of appeal on February 3, 2020. Father contends on
appeal that the trial court abused its discretion in failing to grant his motion to remove the
supervision requirement. In substance, Father argues the record before the trial court
conclusively showed there would be “no significant risk” to his children under Family
Code section 3030 if he were restored to unsupervised child custody because (i) Judge
Zepeda’s earlier ruling had indicated the motion would have been granted but for the then
pending 2016 criminal charges, which charges were dismissed, and (ii) other factors
showed there was no reasonable basis for denial of Father’s motion. As explained below,
Father’s arguments fall short of establishing an abuse of discretion in this unique case.

5 A preponderance of evidence means evidence which, in the assessment of the trier
of fact, has “ ‘more convincing force than that opposed to it.’ ” (Glage v. Hawes
Firearms Co. (1990) 226 Cal.App.3d 314, 324; accord, People ex rel. Brown v. Tri-
Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567.)

8.
 DISCUSSION
I. Standard of Review
Because the trial court’s ruling under Family Code section 3030 constitutes an
order determining custody or visitation issues, we review the trial court’s ruling under the
deferential abuse of discretion test. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.)
Under this test, broad deference must be shown to the trial judge. The reviewing court
should only interfere if it finds that under all the evidence, viewed most favorably in
support of the trial court’s action, no judge could reasonably have made the order under
consideration. (Ed H. v. Ashley C. (2017) 14 Cal.App.5th 899, 904.) “ ‘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
Stephanie M. (1994) 7 Cal.4th 295, 318–319; accord, In re Marriage of Connolly (1979)
23 Cal.3d 590, 598 [“it is generally accepted that the appropriate test of abuse of
discretion is whether or not the trial court exceeded the bounds of reason, all of the
circumstances before it being considered”].)
To the extent the appeal challenges the trial court’s foundational factual findings,
our review is limited to whether any substantial evidence, contradicted or uncontradicted,
supports the trial court’s ruling. We resolve conflicts in the evidence in favor of the
prevailing party and draw all reasonable inferences to uphold the trial court’s decision.
(Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 300; see also In re Robert L. (1993)
21 Cal.App.4th 1057, 1065 [abuse of discretion review often involves a substantial
evidence component].) “Even though contrary findings could have been made, an
appellate court should defer to the factual determinations made by the trial court when the
evidence is in conflict.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)

9.
 “ ‘The burden is on the party complaining to establish an abuse of discretion, and
unless a clear case of abuse is shown and unless there has been a miscarriage of justice a
reviewing court will not substitute its opinion and thereby divest the trial court of its
discretionary power.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
II. Overview of Family Code Section 3030
Family Code section 3030, subdivision (a)(1) states, in relevant part, as follows:
“No person shall be granted physical or legal custody of, or unsupervised visitation with,
a child if the person is required to be registered under Section 290 of the Penal Code
where the victim was a minor, … unless the court finds that there is no significant risk to
the child and states its reasons in writing or on the record. The child may not be placed
in a home in which that person resides, nor permitted to have unsupervised visitation with
that person, unless the court states the reasons for its findings in writing or on the record.”
(Fam. Code, § 3030, subd. (a)(1), italics added.)
Further, Family Code section 3030, subdivision (a)(3) provides as follows: “The
fact that a child is permitted unsupervised contact with a person who is required, as a
result of a felony conviction in which the victim was a minor, to be registered as a sex
offender under Section 290 of the Penal Code, shall be prima facie evidence that the child
is at significant risk. When making a determination regarding significant risk to the
child, the prima facie evidence shall constitute a presumption affecting the burden of
producing evidence. However, this presumption shall not apply if there are factors
mitigating against its application, including whether the party seeking custody or
visitation is also required, as the result of a felony conviction in which the victim was a
minor, to register as a sex offender under Section 290 of the Penal Code.” (Fam. Code,
§ 3030, subd. (a)(3).)
The evident purpose of the above provisions is to protect minor children when
custody or visitation determinations are made by ensuring that a trial court appropriately

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considers the risk of granting custody or visitation to a parent who is a registered sex
offender. As such, these provisions serve to advance an important family law public
policy set forth in Family Code section 3020, which states: “The Legislature finds and
declares that it is the public policy of this state to ensure the health, safety, and welfare of
children shall be the court’s primary concern in determining the best interests of children
when making any orders regarding the physical or legal custody or visitation of children.”
(Fam. Code, § 3020, subd. (a); see also Stats. 2005, ch. 483, § 1 (Sen. Bill No. 594)
[stating similar legislative findings with specific reference to Fam. Code, § 3030].)
III. No Abuse of Discretion Demonstrated by Father
A. Trial Court’s Ruling Not Outside the Bounds of Reason Under the Circumstances
Here, the trial court found that Father had failed to convincingly prove that there
would be no significant risk to the children if the supervision requirement were removed.
Accordingly, Father’s motion was denied. The trial court’s decision appears to have
relied to a considerable extent upon the fact that, even though ultimately dismissed, the
2016 criminal charges against Father were (i) supported with sufficient evidence at a
preliminary hearing to require Father to answer and potentially stand trial, and (ii) the
2016 criminal allegations were remarkably similar in nature to what happened in the
original offense in 1998. Moreover, implicit in the trial court’s assessment of this matter
was, as the counselor stated in the report to the trial court, no explanation for the 2016
criminal charges and the circumstances thereof was ever provided. The trial court also
emphasized it observed the witnesses’ demeanor, judged their credibility, and determined
what weight to afford the presented evidence. The trial court further found the evidence
submitted by Father, including the declarations of his mother and girlfriend to be too
sparse and conclusory to persuade the trial court that no significant risk existed.
Additionally, the trial court deemed the children’s opinions on whether a significant risk
may have existed in this context to be of doubtful utility. Under all the foregoing

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circumstances, the trial court concluded that Father had failed to persuasively show no
significant risk to the children for purposes of Family Code section 3030, and therefore
the motion to remove the supervision requirement was denied.
Based on the above described summary of the trial court’s evaluation of the facts
and circumstances before it, we conclude the court’s ruling was adequately supported and
was within the bounds of reason, even if a contrary inference was also possible. As we
have noted, “ ‘[t]he 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 Stephanie M., supra, 7 Cal.4th at pp. 318–319.) Following this
deferential standard, we find that no abuse of discretion has been shown. That is, on this
record, we are unable to conclude the trial court’s ruling was outside the bounds of
reason, all the circumstances before it being considered. (See In re Marriage of
Connolly, supra, 23 Cal.3d 590, 598 [stating deferential abuse of discretion standard].)
B. Father’s Arguments to the Contrary Unconvincing
Father’s appeal presents several arguments seeking to persuade us that the trial
court’s denial of his motion to remove the supervision requirement constituted an abuse
of discretion. These arguments, which we find unconvincing, are addressed briefly
below.
To begin with, Father argues that the trial court erred in denying the motion
because, at a prior hearing, a different judge (Judge Zepeda) indicated that she would
have found there was no significant risk to the children if it were not for the existence of
the new criminal charges filed against Father in 2016. Based on this remark by Judge
Zepeda, Father argues that when—after the 2016 criminal charges were dismissed in
2019—he filed his subsequent motion under Family Code section 3030, the trial court
was obligated to grant the motion. We reject this line of argument. Father has failed to

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present any authority or cogent legal argument for the proposition that the trial court was
compelled to rule in a certain way based on comments made from the bench by another
judge at an earlier motion hearing. As a result of this fundamental failure by Father, his
contention is forfeited on appeal. (See Holden v. City of San Diego (2019) 43
Cal.App.5th 404, 418 [where appellant fails to support a point with reasoned argument
and citations to authority, we treat the point as waived]; accord, Bank of America, N.A. v.
Roberts (2013) 217 Cal.App.4th 1386, 1399.)
Moreover, as the trial court correctly reasoned in its ruling, the isolated statement
made by Judge Zepeda from the bench at the time of the earlier motion appeared to be
preliminary or anticipatory in nature, not a final or binding order based on all the facts
and circumstances. Such would appear to be a sound and reasonable construction of
Judge Zepeda’s comments, since Judge Zepeda expressly indicated she was not going to
get into the evidence concerning the new criminal allegations or make a final
determination at that time, since it would be premature to do so while the allegations
were still pending. While it was clearly assumed that Father would have an opportunity
to bring a new motion after the termination of the criminal case—which is what
eventually occurred—there is nothing to indicate that Judge Zepeda’s remarks can or
should be used to preempt judicial discretion or compel a particular outcome. For all
these reasons, we conclude that Father’s claim of error premised on the allegedly binding
effect of Judge Zepeda’s remarks is unpersuasive and without merit.
Father also argues that no risk to the children would exist if the supervision
restriction were removed because, allegedly, the actions for which he sustained a
conviction did not stem from a desire to engage in sexual intercourse with minor female
children and did not stem from a pedophilic disorder. However, these statements
purportedly describing Father’s underlying condition or tendencies are asserted in
Father’s brief on appeal as mere conclusions, without any reference to evidence in the

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record. Bare assertions of fact set forth in a party’s argument are not a substitute for
citation to a supporting record, and an appellant’s failure to reference an adequate record
will result in a forfeiture of the argument. (Byars v. SCME Mortgage Bankers, Inc.
(2003) 109 Cal.App.4th 1134, 1140 [“An appellant must support his argument in the
briefs by appropriate references to the record”]; City of Lincoln v. Barringer (2002) 102
Cal.App.4th 1211, 1239 [argument may be disregarded on appeal where appellant failed
to provide citation to supporting factual record]; Duarte v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856 [failure to support an argument with necessary citations
to the record results in waiver or forfeiture of the argument]; accord, Shenouda v.
Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 514.) Therefore, Father’s argument
premised on his conclusory and unsupported assertions set forth in his appellate brief is
deemed waived or forfeited on appeal and does not establish that the trial court erred or
abused its discretion.
Lastly, Father argues that because he was granted sole physical custody of the
children, even if it was subject to a supervision requirement, it must mean he was not a
significant risk to his children. In connection with this argument, Father points out that
Family Code section 3030 does not permit a person to be granted physical or legal
custody, or unsupervised visitation, with a child if the person is required to be registered
as a sex offender where the victim was a minor “unless the court finds that there is no
significant risk to the child and states its reasons in writing or on the record.” (Fam.
Code, § 3030, subd. (a)(1), italics added.) According to Father, it would “directly
contradict[]” these provisions of section 3030 to allow Father to have physical custody, as
occurred here, unless it was implicitly understood by the trial court that there was no
significant risk pursuant to Family Code section 3030.
Although the foregoing argument has some plausibility, it falls short of
affirmatively demonstrating an abuse of discretion in this case for the reasons we now

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explain. First, Family Code section 3030 requires an actual finding by the trial court
“that there is no significant risk to the child,” which finding must include an express
statement of the trial court’s reasons in writing or on the record. (Fam. Code, § 3030,
subd. (a)(1).) Because Father has failed to refer this court to any custody order providing
an express finding of no significant risk to the children, he has plainly failed to show
compliance with the requirement of Family Code section 3030. In other words, where, as
here, no express finding of no significant risk has been made, the mere allowance of a
qualified or supervised form of custody under existing orders does not necessarily
establish an absence of significant risk. Second, Father cannot persuasively argue that his
existing custody relationship by itself equates to there being no significant risk to the
children when the nature of that custody relationship involves the requirement of
supervised contact. It is far more reasonable to view the requirement of supervised
contact as a protective measure adopted in the furtherance of the purposes of Family
Code section 3030—meaning that it was intended to remain in place until Father showed
there is no significant risk. For all these reasons, Father’s supervised custody order—i.e.,
the existing custody relationship—does not necessitate the conclusion that there would be
no significant risk to the children in the absence of supervision or that the trial court
abused its discretion in this case.6

6 Father does not press the statutory consistency argument further, and our holding
is limited to the statutory argument as presented. Obviously, Father is not arguing that,
for the sake of statutory consistency, he should not have been granted custody at all. In
any event, since it was not adequately raised, we need not and do not address the further
potential issue of whether the trial court’s apparent compromise to both (i) allow Father
physical custody of the children and (ii) make said custody subject to third-party
supervision, fully comported with the language of Family Code section 3030, subdivision
(a)(1). (But see Fam. Code, § 3030, subd. (a)(3) [indicating the statutory presumption of
a risk to the children does not apply to the extent “there are factors mitigating against its
application”].)

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 In summary, Father has failed to meet his burden of affirmatively demonstrating
that the trial court’s denial of his motion to remove the supervision requirement was
outside the bounds of reason under all the circumstances. Although we conclude that no
abuse of discretion has been shown by Father, which conclusion mandates we affirm the
order of the trial court, we emphasize that our affirmance of the trial court’s order herein
does not preclude Father from pursuing a subsequent motion in the trial court under
Family Code section 3030, whereby Father may at such time seek to remove the
supervision requirement by more adequately demonstrating no significant risk.
IV. Alleged Error by the Mediator
Finally, Father argues reversible error occurred because the “Tier 2 Mediator”
erroneously inserted a restriction into his mediation report that Father “is not to be
unsupervised with any female minors.” Father argues that this restriction was never
imposed against Father in any of the legal documents. Further, it is argued the erroneous
restriction set forth in the Tier 2 Mediator’s report may have caused the trial court to
commit error in its ruling. As explained below, we reject Father’s arguments relating to
the mediator’s report.
Our review is of the correctness of the trial court’s order or judgment. (In re Zeth
S. (2003) 31 Cal.4th 396, 405.) It is a fundamental rule of appellate law that the trial
court’s order or judgment is presumed to be correct, and accordingly error must be
affirmatively demonstrated. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154
Cal.App.4th 547, 556–557.) All intendments and presumptions are indulged in favor of
the correctness of the court’s order or judgment. (In re Marriage of Arceneaux (1990) 51
Cal.3d 1130, 1133; Denham v. Superior Court, supra, 2 Cal.3d 557, 564.) Any
ambiguity in the record is resolved in favor of the appealed judgment or order.
(Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.) Consistent
with these basic principles, “[t]he appellant must present an adequate argument including

16.
citations to supporting authorities and to relevant portions of the record.” (Yield
Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at p. 557.) The burden of
affirmatively demonstrating error “rests on the appellant.” (Winograd v. American
Broadcasting Co., supra, 68 Cal.App.4th at p. 632.) Furthermore, “even if error is
demonstrated it will rarely warrant reversal unless it appears ‘reasonably probable that a
result more favorable to the appealing party would have been reached in the absence of
the error.’ [Citations.] This means the appellant must show not only that error occurred
but that it is likely to have affected the outcome.” (Yield Dynamics, Inc. v. TEA Systems
Corp., supra, 154 Cal.App.4th at p. 557.)
Here, Father has inappropriately framed the issue on appeal as whether there was
reversible error on the part of the Tier 2 Mediator. As so articulated, such an argument is
clearly misplaced because our role, as an appellate court, is to review the trial court’s
order or judgment from which the appeal was taken (See, e.g., In re Zeth S., supra, 31
Cal.4th at p. 405; In re Marriage of Arceneaux, supra, 51 Cal.3d 1130, 1133; Smith v.
Smith (1955) 135 Cal.App.2d 100, 108 [appellate court reviews the action of the trial
court]), and not the mediator’s conduct. That is, under the basics of appellate law,
reversal is only warranted where an appellant has affirmatively shown prejudicial error
on the part of the trial court. (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154
Cal.App.4th at pp. 556–557; see also Code Civ. Proc., § 475; Cal. Const., Art. VI, § 13.)
In any event, Father has failed to affirmatively demonstrate that any judicial error
occurred in this case as a result of the allegedly erroneous statement contained in the
Tier 2 Mediator’s report. It appears from the record that the trial court sought
clarification of whether the mediator’s statement to the effect that Father had been
prohibited from being unsupervised with any female minors had any factual basis. In
response to the trial court’s query, Father presented information, documents and
argument allegedly showing there was nothing in the record or legal documentation that

17.
would support the mediator’s statement. Subsequently, on January 6, 2020, the trial court
issued its written order denying Father’s motion. In the trial court’s written order, which
described the evidence relevant to the Family Code section 3030 motion, the Tier 2
Mediator’s report was not mentioned, nor was there any indication that the trial court
relied on any statement in the report by the Tier 2 Mediator. Therefore, contrary to
Father’s argument, the record fails to establish the alleged error occurred, nor that such
error, if any, resulted in prejudice. Consequently, Father’s claim of reversible error based
upon an inaccurate statement contained in the Tier 2 Mediator’s report is without merit.
DISPOSITION
The order of the trial court is affirmed. Father must bear his own costs on appeal.
Our affirmance of the trial court’s order does not preclude Father from pursuing a
subsequent motion in the trial court under Family Code section 3030.

LEVY, Acting P. J.
WE CONCUR:

POOCHIGIAN, J.

MEEHAN, J.

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