Marriage of Alvarez

Filed 4/10/07 Marriage of Alvarez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, DeAnn Salcido, Judge. Affirmed.

Kim Alvarez (Kim)[1] appeals a child custody order restricting her to supervised visitation. She contends the order must be reversed because she was denied due process, the court improperly admitted hearsay evidence, it applied an erroneous standard and acted in excess of jurisdiction. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND[2]

Kim and Joe Alvarez had a son (born in October 1988), who is a special needs child, and two daughters (born in September 1990 and July 1993).[3] An attorney was appointed to represent the children. The children also had a therapist, John Parker. In September 2004, a temporary custody order was entered providing for each parent to have the children on alternating weeks.

In December 2004, Joe filed an order to show cause seeking to modify custody so that the children would reside primarily with him because the son had excessive absences from school, with all full-day absences three excused and three unexcused occurring while in Kim's custody. The daughters were also suffering a decline in their academic performance due to absences. Joe filed a declaration stating that on New Year's Eve 2004, at about midnight while the children were in his care, Kim called their 11-year-old daughter and "frantically" told her five men were trying to kidnap and kill her. He stated he wanted primary custody of the children for at least the remainder of the school year.

Following a hearing on January 11, 2005, the court modified custody so that Joe had primary physical custody during the school year with Kim having the children on the first, second and fourth complete weekends of each month and every other Wednesday evening provided no Saturday school was required for the son and the daughters did not miss any homework assignments. The court set a review hearing at the end of June 2005.

At the June 2005 hearing, the court made no modifications because the parties had adjusted to the custody arrangement and there was only a short period during the summer that could be modified. A review hearing was set for November 2005 so that the court could consider the children's grades during the fall term.

On September 23, 2005, the son was drunk at a school dance and, because the school had a zero tolerance policy, he was suspended from school for four days and required to attend drug and alcohol awareness classes on those days. Joe discovered beers were missing from his house and, as punishment for his son, removed the keyboard from the son's computer. When the son discovered his keyboard was missing an argument ensued, with Joe threatening to lock up the son's motorcycle and not let him get his driving permit. During the course of the argument, the son broke glass panes in the front door with his fist. At one point, Joe restrained his son to keep him from breaking more glass, held him and they fell to the couch. During the argument, the son called Kim. Joe's version of what occurred was corroborated by a declaration of a friend who was at his house during the incident.

In support of her application for a temporary restraining order, Kim filed a declaration stating that she received a telephone call from Joe's house where she heard Joe cursing and yelling things like "Come here you fucking asshole," heard sounds like someone being hit and heard a struggle before the phone was hung up or disconnected. She drove to Joe's house. When she honked the car's horn, her son came out of the house with his clothes and some of his belongings. Joe said, "Run home to your Mama, Pussy Boy." When the sheriff's deputies arrived, the son was very agitated and described Joe as trying to kick and punch him in the face.

A temporary restraining order was issued. At the end of September, the temporary restraining order was modified to restrain Joe only from contact with Kim, the prior custody order was reinstated and a hearing was set for the end of October. When Kim did not appear at the October hearing, the temporary restraining order was dismissed.

For the November 2005 hearing, the minors' counsel lodged a letter written to him by the children's therapist, Parker, expressing concerns about the safety and well-being of the children. Parker noted that while the summer was uneventful, Kim had systematically missed, cancelled or was late for every bi-weekly therapy session scheduled for the children. The only time she delivered the children to a session, she arrived 45 minutes late. He described Kim as "spinning out of control." On October 12, she had been so angry and hostile that Parker, for the first time in his thirty-year career, required a parent to leave his office. On October 26, Kim pleaded with Parker to "save her children." On November 9, she challenged Parker as to the children's need for therapy and cancelled the children's therapy session.

Parker noted that after November 2, when Joe caught his son "ditching school" and the son failed to return to Joe's home, Parker believed the son was residing with Kim and that Kim had written a parental excuse. Parker stated Kim was undermining Joe's authority in the guise of protecting her son. He believed the son was "on the cusp of academic failure" and that Kim's "differential treatment" of her son combined with her undermining of the primary custodial parent's authority was detrimental to the daughters.

Parker described Joe as the more organized and effective parent with consistent expectations and discipline. Joe was actively participating in therapy and learning to manage his anger issues. In contrast, Kim appeared to be not only seriously out of control, but to be actively undermining the stability and well-being of her children. She was also actively thwarting and undermining the court's orders. In Parker's experience, when "parental toxicity levels" reached the level demonstrated by Kim, "draconian measures" were required such as a no contact order or supervised visitation.

Although the minors' counsel stated he had given Parker's report to Kim, she stated at the hearing that she had only the lodgment and notice of lodgment. The court directed minors' counsel to give Kim a copy of the report, which was about two and one-half pages long and provided Kim an opportunity to read it. She stated she read the report and did not ask for any additional time to respond.

During the hearing, Kim stated that she wanted a good relationship between Joe and their son, denied facilitating her son's absence from school and initially denied writing him excuses. She did not believe any of the children were "on a downward spiral." She denied that she was an enabler.

Joe acknowledged his relationship with his son at the moment was "very touchy." He stated that when the son was suspended for drinking, he had threatened not to allow the son to get a driver's license, but Kim had then helped the son get the license. When Joe took away the son's cell phone after he had run up a $250 monthly bill and twice violated the cell phone spending limit, Kim bought him a cell phone.

The court stated it was concerned about the current situation, particularly with the son, noting that he was "caught up in a bad cycle right now" that could lead to criminal behavior. The court found the current orders were not effective and that Kim was involved in destructive "enabling behavior." The court noted she acted inappropriately when she provided a parental excuse for the son when he was caught ditching school.

The court observed that Joe and the son "have had altercations in the past but it's not exactly unusual behavior between a teenage son and a father to at some point get physical." While the court did not approve of the conduct, the court also found Joe did not pose any physical danger. Further, when Kim suggested a Child Protective Services worker had reported the children were concerned about the son's safety in Joe's home, the court noted the children were represented by counsel and there was no evidence of a pending action. The court found Kim's enabling behavior to be a bigger detriment than Joe's continuing need to improve on his anger management because Kim was giving the son "bad theories or understanding" about following court orders, authority and attending school.

The court gave sole physical and legal custody to Joe, required Kim to terminate the cell phone service she had given to her son, ordered both parents to participate in therapy, ordered Kim to complete a parenting class, ordered Kim not to have phone contact with the children until she had completed three therapy sessions and ordered Kim's contact with the children to be limited to four hours of supervised visitation per week.

Kim filed a motion for reconsideration, which the court denied.

DISCUSSION

I

Denial of Due Process

Kim contends she was denied her due process right to notice and an opportunity to be heard because she did not receive timely notice of the minors' counsel's custody recommendation or Parker's report. Therefore, she contends that she did not have an opportunity to present evidence from her own psychologist to refute Parker's statements or for cross-examination.

Family Code section 3151, subdivision (b) provides the court may request children's counsel to prepare "a written statement of issues and contentions setting forth the facts that bear on the best interests of the child" and that this statement "shall be filed with the court and submitted to the parties or their attorneys of record at least 10 days before the hearing, unless the court orders otherwise."[4] Thus, Family Code section 3151, subdivision (b) both authorizes the court to request a written report and to allow such a report to be filed late.

Here, the record shows Parker's letter to children's counsel was written five days before the November 15 hearing and was lodged with the court on Friday, November 11. Kim, who was not represented by counsel at the hearing, was given an opportunity to read Parker's letter. At no time did she request any additional time, whether to digest the contents of the letter or to call witnesses such as her own psychologist. Nor did she seek to call Parker to cross-examine him on his observations and statements.

Because Kim did not object to the late notice nor seek a continuance in the trial

court, she may not now raise the issue on appeal. Issues that were not raised in the trial court, including constitutional issues, generally may not be raised for the first time on appeal. (People v. Simon (2001) 25 Cal.4th 1082, 1103; People v. Marchand (2002) 98 Cal.App.4th 1056, 1060 ["Even a claim that [a party's] due process right to notice was violated may be waived by the failure to assert the claim in the trial court."].) " ' "No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." . . . ' [Citation.] [] 'The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal. App.. 603 at page 610 . . . ." ' In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.' " ' " (People v. Simon, supra, at p. 1103.)

By failing to raise the issue, Kim gave the court no indication she needed additional time or wanted to call any witnesses. The court, therefore, could reasonably presume she felt she had reasonably sufficient notice and an adequate opportunity to present her case. Kim was not denied an opportunity to be heard. The court gave her ample opportunity to present her views to the court. Any failure to present witnesses or to call Parker for cross-examination was due to Kim's failure to avail herself of an opportunity to do so.

II

Inadmissible Hearsay

Kim contends the order must be reversed because it was based on inadmissible hearsay, that is, on the statements in Parker's letter.

Initially, we note that although Kim captions her argument as one involving "inadmissible hearsay," her actual argument does not address hearsay issues but other matters. Whether denominated "hearsay" or otherwise, Kim failed to object to the court's consideration of Parker's letter to minors' counsel or to minors' counsel's recommendations to the court based on Parker's letter and therefore she waived this issue. (See Evid. Code,  353, subd. (a); Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611; People v. Waidla (2000) 22 Cal.4th 690, 717 [evidentiary objections waived]; Web Service Co. v. County of Los Angeles (1966) 242 Cal.App.2d 1, 8 [challenges to expert's qualifications waived].).

A. Preclusion of Expert Opinion by Professional Rules of Conduct

And the California Rules of Court

Kim contends Parker was precluded by the ethical rules of his profession from offering expert opinion on her mental condition and by California Rules of Court from making custody recommendations. Kim's argument appears to be based on a premise that Parker was a child custody evaluator.[5] He was not. Rather, he was the children's therapist who wrote a letter to their counsel apprising the counsel of the children's situation.

B. Parental Alienation Opinion was Inadmissible

Kim argues Parker's opinion was inadmissible insofar as its underlying premise was that she was engaging in "parental alienation" by undermining Joe's authority. She asserts "no appellate court has ever held that evidence concerning the parental alienation syndrome (PAS) is properly the subject of expert opinion as it is not supported by empirical data, not listed in the Diagnostic Statistic Manual of Mental Disorders, not recognized by the American Psychiatric Association and not considered valid by most mental health professionals." Parker, however, did not offer any opinions about PAS and therefore the statements were not inadmissible on this basis.

C. Delegation of Judicial Responsibilities

Kim states the court's adoption of Parker's opinion constituted an improper delegation of its judicial responsibilities. She does not explain this argument other than to state the court adopted Parker's recommendations as presented by the children's counsel without giving her any opportunity for cross-examination or to present contradictory evidence. As we explained above in part I, Kim was not denied an opportunity for cross-examination or to present contrary evidence, rather she failed to

avail herself of the opportunity by not asking for time to call Parker or present other evidence. Further, the court's decision was not based solely on Parker's letter but on other evidence relating to the children's school attendance and Kim's conduct in undermining Joe's authority.

III

Application of Erroneous Standard

Kim contends the court applied an erroneous standard, arguing that the court's finding of physical abuse required it to state why changing custody was in the children's best interests and it failed to do so.

The Family Code provides for a rebuttable presumption that an award of sole or joint physical or legal custody of child to a parent charged with domestic violence is detrimental to the best interest of the child. (Fam. Code,  3044, subd. (a).) Kim asserts the presumption could be rebutted only if Joe had successfully completed and was released from treatment. She cites no authority to support this assertion and we see no reason why the presumption could not be rebutted, as in this case, by a consideration of the circumstances of a physical encounter (keeping the son from breaking more glass) and evidence showing Joe was making progress in therapy and no longer posed a risk. Additionally, we note that since the son is now 18 years old and the alleged physical abuse related only to him, this issue is moot.

IV

Constitutionality of Supervised Visitation Order

Kim contends the court's order requiring her visitations with the children be limited and supervised was an unconstitutional violation of her due process rights and constituted a termination of her parental rights. Under the rubric of unconstitutionality, she also raises a host of evidentiary and procedural contentions.

Initially, we note that Kim's parental rights were not terminated[6] and her reliance on juvenile dependency cases involving the termination of parental rights are of little assistance in the family law context because of the differing issues and standards of review.

Second, many of Kim's arguments were not raised below and therefore were waived and may not be raised for the first time on appeal. For example, she did not raise issues relating to expert opinions on the utility of supervised visits in family court cases, or reliance on emotional abuse as the basis of a custody order.

Third, as to many of the arguments, including, for example, her claimed violation of the Fourteenth Amendment's guarantee of equal protection, Kim merely asserts the claim without further argument or citation to authority. " 'This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record.' " (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)

Fourth, many of Kim's arguments are mere variants of arguments we have already addressed and rejected, for example, that she was denied due process and that Parker's letter was inadmissible.

Fifth, some of Kim's arguments mischaracterize the record. For example, she asserts the court refused to answer her question as to why the visitation was required to be supervised. The record shows that after the court announced its ruling, Kim asked the court if her enabling was "so bad" that supervised visits were required. This question, in and of itself, demonstrates that the court had communicated to Kim the reason for the supervision requirement. As another example, Kim claims that no one, including Parker, ever identified the harm that would befall the children if the visits were not monitored. The harm was identified by Parker, minors' counsel, and Joe and recognized by the court, that is, that Kim not only undermined Joe's authority and care of the children but also engaged in destructive, enabling conduct and violated court orders.

Sixth, while some of Kim's arguments may have a valid starting premise they do not lead to a conclusion the judgment should be reversed. For example, while it is true that a placement order should not be made for the purpose of punishing an errant parent, there is nothing in the record even remotely suggesting that the court's order was motivated by a desire to punish or discipline Kim rather than to protect the best interests of the children.

Finally, when viewed as a whole, it appears that Kim's argument is really a challenge to the court's exercise of its judgment and its evidentiary basis.

"The trial judge, having heard the evidence, observed the witnesses, their demeanor, attitude, candor or lack of candor, is best qualified to pass upon and determine the factual issues presented by their testimony. This is especially true where the custody of minor children is involved." (In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1492.) The trier of fact may reject evidence presented to it. (Beck Dev. Co. v. S. Pac. Transp. Co. (1996) 44 Cal.App.4th 1160, 1206.) " 'All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity, to be accepted by the trier of fact.' " (Buehler v. Sbardellati, supra, 34 Cal.App.4th 1527, 1542.) "An appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts. Only upon a clear and convincing showing of abuse of discretion will the order of the trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it is the trial judge's discretion and not that of the appellate court which must control." (In re Marriage of Lewin, supra, 186 Cal.App.3d 1482, 1492; In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)

"[I]t 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." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598; In re Marriage of Loyd (2003) 106 Cal.App.4th 754, 759.) The test is not whether we would have made a different decision had the matter been submitted to us in the first instance. Rather the discretion is that of the trial court, and we will only interfere with its ruling if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge reasonably could have reached the challenged result. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)

Here, there is ample evidence to support the court's determination it was necessary to limit Kim's contact with the children because she was engaging in behavior that was detrimental to the children. There was evidence showing Kim violated the court's order; tolerated school absences when the children were in her custody; wrote a parental excuse for an absence after her child was discovered absent from school without an excuse; took a child out of a drug/alcohol awareness class to get a driver's license after the child had been caught drinking at a school dance; provided a child with a cell phone after Joe had taken away the cell phone for twice violating specified spending limits; and thwarted the children's therapy by failing to take the children to therapy sessions or arriving very late.

Parker's letter indicated he had witnessed Kim engaging in out of control behavior on three separate occasions. The trial court was entitled to consider Parker's opinion that Kim was "not only . . . seriously out of control, but [also] actively undermining the stability and well being of her children" and that her level of "parental toxicity" required the consideration of "draconian measures," such as requiring supervised visitation.

We conclude, under the circumstances of this case, the court did not abuse its discretion in ordering supervised visitation.

V

Reply Brief

Kim raises a number of additional issues for the first time in her reply brief. Points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) No good cause appears to support the raising of additional issues in the reply brief.

DISPOSITION

The order is affirmed. Joe Alvarez is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

HUFFMAN, J.

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[1] As is customary in family law matters, for the sake of clarity we refer to the parties by their first names.

[2] As required by the rules of appellate review, we view the evidence in the light most favorable to the judgment. (See Buehler v. Sbardellati (1995) 34 Cal.App.4th 1527, 1542.)

[3] Since Kim and Joe's son has turned 18 years old, the custody and visitation orders as to him are now moot. However, because many of the custody issues involved evidence relating to Kim and Joe's interactions with the son, we have set forth that evidence.

[4] Kim, in support of her due process argument, states the court had denied her attorney's request for a continuance at a hearing in January 2005. Not only has the time for challenging this denial long since passed but also it is irrelevant to the issues raised on appeal.

[5] To support her argument, she cites to statutes authorizing a court to appoint an expert as a child custody evaluator. (Fam. Code,  3111, subd. (a); Evid. Code,  730.)

[6] In the "Conclusion" of her opening brief, Kim contends the court acted in excess of jurisdiction because the court's order effected a de facto termination of her parental rights. However, the court did not terminate her parental rights.