Filed 12/18/17 Diaz v. Rodriguez CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


IVANA DIAZ,
Plaintiff and Respondent,
v.
DONALDO RODRIGUEZ,
Defendant and Appellant.

A150275

(Alameda County
Super. Ct. No. HF16818857)


Donaldo Rodriguez appeals an order granting plaintiff Ivana Diaz’s petition for a restraining order. Rodriguez, who was self-represented at trial and remains so on appeal, contends the court granted the restraining order and awarded Diaz custody of their daughter in violation of his constitutional rights. We affirm.
Factual and Procedural Background
On June 9, 2016, Diaz filed a request for domestic violence restraining order seeking protection for herself and her then four-year-old daughter from Rodriguez. The petition alleged that throughout her approximately six-year relationship with Rodriguez, he has regularly physically and sexually abused Diaz. She and Rodriguez began dating in 2009 and she became pregnant almost immediately thereafter. Shortly after their daughter was born, Rodriguez became emotionally abusive. Within a year, he began physically abusing her. Approximately twice a month, Rodriguez would hit, slap, kick and punch her. For the last two years, on a weekly basis he forced her to have sex against her will. The declaration attached to her petition details numerous incidents of abuse. Diaz stated further that Rodriguez had threatened to take the child to El Salvador, repeatedly locked her out of their house, and had prevented Diaz from having any contact with her daughter for the preceding two weeks. A temporary restraining order was issued the same day and a hearing set for June 28, 2016.
In advance of the hearing, Diaz and Rodriguez submitted briefs. Diaz detailed the abuse and argued that a restraining order was appropriate under the Domestic Violence Protection Act, Family Code section 6300 et seq. Rodriguez opposed the issuance of a restraining order and requested custody of their daughter. He indicated that he had been his daughter’s primary caregiver since she was three weeks old.
After hearing testimony from Diaz and Rodriguez, the court granted the restraining order. The court ordered Rodriguez to move out of the family home, attend a domestic violence class, and stay away from Diaz’s home and work and the daughter’s school. The order also prohibited both parents from taking the daughter out of Alameda County. The court awarded Diaz physical and legal custody of the daughter and adopted a schedule for supervised visitation. A hearing was scheduled for October 25, 2016 to review compliance with the restraining order and resolve child support issues.
On October 18, 2016, Rodriguez filed a request to continue the October 25 hearing. His motion states that he “possesses substantial evidence significant to the subject matter of ‘full custody’ . . . that needs to be submitted as discovery to be reviewed by the Bench prior to the proceedings.” At the same time, Rodriguez filed a declaration detailing his daughter’s autism and his participation in her treatment. The matter was continued to November 8 and then again to November 15 and then to November 29.
On November 18, Rodriguez filed documents entitled “Notice of Intent to Disqualify Judge” and “Motion to Challenge Jurisdiction.” The notice expressed concern that the trial judge had unjustifiably prolonged his separation from his daughter and requested that the November 29 hearing be reset for November 22. The motion also related to the continuance of the hearing from November 15 to November 29 and asked, “by what constitutional jurisdiction the court claims authority to continue to give Ivana Diaz, without due process, privilege to separate Donaldo Rodriguez from his daughter.” It is unclear whether the court responded to Rodriguez’s filings, but the hearing was conducted as scheduled on November 29.
Prior to the November 29 hearing, Rodriguez filed numerous documents and declarations with the court. The Alameda County Families and Children’s Bureau submitted a report recommending that the mother continue to have legal and physical custody of the child and the father have biweekly supervised visitation. The report states, “Mother is asking that father continue with supervised visitations until he completes his 52 weeks of domestic violence classes and father is asking for custody of [his daughter]. [She] is autistic according to parents. Father has completed 500 hours of autistic trainings and has had four months of supervised visitations at Terra Firma. He produced a report from Terra Firms and Bertha Culler has very positive things to say about the visits. . . . This counselor given the review of information believes that father could have four hours unsupervised visitation with [his daughter] with exchanges at Terra Firma. The child wears a GPS device so that mother will know where she is at all times, due to the concern that father might take her to el Salvador.”
On November 29, after hearing testimony from Diaz and Rodriguez, the court issued an amended restraining order adopting the new visitation schedule.
On December 22, Rodriguez filed a request for a statement of decision. He indicated that he “believes that court determinations since 6/29/16 have not been with the best interest of the child in mind” and he sought an explanation of the court’s disregard of the evidence he had submitted.
On December 23, Rodriguez timely filed a notice of appeal of the November 29, 2017 order.
Discussion
The Domestic Violence Protection Act (§ 6300 et seq.) “authorizes issuance of an order restraining a person ‘for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.’ [Citation.] For purposes of the [act], ‘abuse’ is defined as intentionally or recklessly causing or attempting to cause bodily injury, sexual assault or placing a person in ‘reasonable apprehension of imminent serious bodily injury.’ ” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 421.)
Section 6323 authorizes the court to make ex parte orders regarding temporary custody and visitation of minor children when the party establishes a parent-child relationship. When making an order for custody or visitation pursuant to this section, “the court's order shall specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members” and “the court shall consider whether the best interest of the child, based upon the circumstances of the case, requires that any visitation or custody arrangement shall be limited to situations in which a third person, specified by the court, is present, or whether visitation or custody shall be suspended or denied.” (§ 6323, subds. (c), (d).)
Section 6340 authorizes the extension—for as long as five years (§ 6345)—of any orders made at the time of the ex parte request, after considering evidence presented at the noticed hearing. Section 6340, subdivision (a) “expressly authorizes issuance of custody and visitation orders and specifically admonishes the court to consider ‘whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought.’ ” (Gonzalez v. Munoz, supra, 156 Cal.App.4th at p. 422; see also § 3031, subd. (a) [“Where the court considers the issue of custody or visitation the court is encouraged to make a reasonable effort to ascertain whether or not any emergency protective order, protective order, or other restraining order is in effect that concerns the parties or the minor. The court is encouraged not to make a custody or visitation order that is inconsistent with the emergency protective order, protective order, or other restraining order.”].)
A grant of a protective order under the Domestic Violence Protection Act is reviewed for abuse of discretion. (Gonzalez v. Munoz, supra, 56 Cal.App.4th at p. 420.)
The record on appeal supports a finding that Rodriguez abused Diaz within the meaning of the Family Code and that the custody and visitation orders were in the best interests of the child. Rodriguez’s arguments to the contrary are not persuasive.
Contrary to Rodriguez’s contention, the declaration submitted by Diaz is substantial evidence of domestic violence sufficient to support the court’s orders. Moreover, absent a reporter’s transcript of the two hearings at which Diaz testified, we must presume that her testimony would provide further evidence of the abuse. (Estate of Fain (1999) 75 Cal.App.4th 973, 992 [“Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.”].)
Rodriguez has not established that the court abused its discretion by awarding Diaz legal and physical custody of their child. The declarations submitted by Rodriguez and the report submitted by the Alameda County Families and Children’s Bureau do show that Rodriguez was very involved in the care of his daughter. The fact that Rodriguez might be an involved father does not, as he suggests, entitle him to custody of his daughter in the face of the substantiated claims of domestic violence. The court did not fail to give proper “credence to the evidence and documentation proving [Rodriguez] was the caregiver and liaison for service [their daughter] required to treat her diagnosis.” To the contrary, the court clearly considered this evidence when it adopted the Bureau’s recommendation that Rodriguez be provided unsupervised visitation.
Finally, there was no error in the court’s failure to grant the relief requested in Rodriguez’s “Notice of Intent to Disqualify Judge,” “Motion to Challenge Jurisdiction” or his request for statement of decision. Although titled “Notice of Intent to Disqualify Judge,” the document is better understood as an objection to the continuance to November 29 that the court granted on November 15. The hearing had been continued at Rodriguez’s request from October 25 to November 15. The additional continuance to November 29, apparently at the request of Diaz’s counsel, did not prejudice Rodriguez. Rodriguez’s request for a statement of decision, submitted more than three weeks after the entry of the court’s order, was untimely. (Code Civ. Proc., § 632 [“In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision.”].)
Disposition
The restraining order is affirmed.





_________________________
Pollak, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.