Filed 12/11/17 Marriage of Bennie M. and Cynthia B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re the Marriage of BENNIE M. III and CYNTHIA M.

BENNIE M. III,

Appellant,

v.

CYNTHIA B.,

Respondent.


E065009

(Super.Ct.No. FAMRS900078)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Teresa S. Bennett, Judge. Affirmed in part; dismissed in part.
Bennie M. III, in pro. per., for Appellant.
No appearance for Respondent.
I. INTRODUCTION
Appellant, Bennie M. III (Bennie), and his former spouse, respondent, Cynthia B., formerly Cynthia M. (Cynthia), are the parents of a girl, J., born in September 2008. Bennie appeals from the October 16, 2015, postjudgment order of the family court, denying his request for sole legal and physical custody of J. and supervised visitation for Cynthia. Pursuant to the October 16, 2015, order, the parties continue to have joint legal and physical custody of J., as they have had since February 2013. Cynthia has not filed a respondent’s brief.
Bennie claims the family court abused its discretion in denying his request for sole legal and physical custody of J. and supervised visits for Cynthia, because the court failed to consider Cynthia’s past acts of domestic violence against Bennie, in 2008, and against J., around 2012. (Fam. Code, § 3011, subd. (b) [in custody matters, court is required to consider “[a]ny history of abuse” by one parent against the other, or by one parent against a child with whom the parent has had a caretaking relationship].) In September 2008, Cynthia pled guilty to assault by means of force likely to produce great bodily injury against Bennie. (Pen. Code, § 245, subd. (a)(1).) Around 2012, Cynthia hit J. with a comb, yelled at her, and allowed the maternal grandmother to yell at her.
We find no abuse of discretion and affirm the October 16, 2015, order.
II. FACTS AND PROCEDURAL HISTORY
A. General Background
Bennie and Cynthia were married in December 2007. In June 2008, the parties separated, Bennie filed a petition for dissolution, and the marriage was dissolved in November 2010. J. is the parties’ only child together. Since before J. was born in September 2008, the parties have almost continually disputed J.’s custody and visitation. Bennie initially had sole legal and physical custody of J., and Cynthia had supervised visitation, based in part on Cynthia’s 2008 aggravated assault conviction.
Cynthia later obtained unsupervised visits, and in February 2013, the parties were ordered to share joint legal and physical custody of J. In 2013, the court found Cynthia had been “rehabilitated.” Cynthia had completed a 52-week anger management course, parenting classes, and had undergone a mental health assessment. Dr. Amy Miller concluded it was in J.’s best interest to have both parents actively involved in J.’s life.
B. The Current Postjudgment Proceedings
On June 25, 2014, Cynthia filed a request for order, seeking to have J. placed in her “sole care and custody” with no visitation for Bennie until he received counseling, or supervised visits for Bennie. In a responsive pleading, Bennie sought sole legal and physical custody of J. and supervised visitation for Cynthia. A court trial in the matter commenced on February 25, 2015, and continued on April 17 and May 6, 2015. In its extensive tentative findings and order, filed on June 11, 2015, and incorporated into the October 16, 2015, order, the court made numerous findings and ordered that the parties would continue to share joint legal and physical custody of J.
The parties’ current dispute began in 2011, before they were ordered to share joint legal and physical custody of J. in February 2013. In 2011, J. began suffering recurring bouts of vaginitis, urinary tract infections, and related bacterial infections. Bennie claimed the infections began when J. was two years old, shortly after Cynthia’s supervised visits ended, and that the infections were caused by Cynthia’s inadequate care for J.’s hygiene. Bennie obtained prescribed medication for J. and administered them to J., but Cynthia only infrequently used the prescribed medication while J. was in her care. On at least 15 occasions between 2011 and January 2013, Bennie took J. to doctors and to urgent care centers for diagnosis and treatment of her symptoms. Bennie also took photographs of J.’s private areas and preserved her underwear in order to document her symptoms.
The parties’ ongoing dispute led to the 2015 trial over custody and visitation. Before the 2015 court trial, each party claimed the other was abusing J. San Bernardino County Children and Family Services had received over 10 referrals alleging Bennie had abused J., and Bennie had made “many motions” for custody of J. due to Cynthia’s alleged neglect. Cynthia also brought “a series of motions” alleging Bennie “was being inappropriate with [J.’s] health care, taking her to unnecessary urgent care facilities, having inappropriate tests run, and applying a topical cream when it was unnecessary.”
In its June 11, 2015, tentative ruling, the court found that, although Cynthia testified she believed Bennie’s claims concerning J.’s symptoms and necessary treatment to be “false generally,” J.’s physician, Dr. Adan, had “documented instances of vaginitis” in J., had “[prescribed] medication along with antibiotics” for J., and testified in her deposition that she believed Bennie was following her instructions concerning the use of J.’s medications. Still, the court ordered that neither party was to take pictures of J.’s private parts as J. “is of an age to be able to describe any distress and place her own medication on her private area if needed.”
The court also noted in its ruling that the testimony of Dr. Robert A. Simon was “revealing as to the family dynamic for [J.].” Dr. Simon testified that, “in high conflict cases [like this one], the allegations of abuse are approximately four times higher than in regular child custody cases,” and when such allegations are made, “this inures to the benefit of the party making the allegation, whether true or false.” Another evaluator, Dr. Robert Suiter, opined that Cynthia did not present a threat to J.
In sum, the court concluded that the parties’ “misunderstanding and lack of sharing of important medical information has caused a lack of trust between the parties to the degree that neither party appears able to accept representations from the other party concerning their daughter’s health.” The court concluded that “both parties have contributed to their current situation due to an inability to effectively communicate with each other about [J.’s] health and education. Both parties are intelligent people who genuinely love their daughter and care about her, but appear more interested in denigrating the other party. This behavior is not in [J.]’s best interest.” (Italics added.) The court found it was in J.’s best interest for the parties to continue to have joint legal and physical custody of J., and made that its order, with each parent having “primary responsibility” in certain areas as set forth in the order.
III. DISCUSSION
Bennie claims the court abused its discretion in denying his request for sole legal and physical custody of J. and supervised visits for Cynthia. He claims the court violated section 3011 because it failed to consider Cynthia’s history of domestic violence against both himself and J. We disagree. As we explain, the record shows the court was aware of these matters and appropriately took them into consideration in ordering the parties to continue to share joint legal and physical custody of J.
A. Applicable Legal Principles and Standard of Review
A parent with “sole legal custody” has the exclusive right and responsibility to make decisions concerning the child’s health, education, and welfare, while parents with “joint legal custody” share these rights and responsibilities. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 29, fn. 2; §§ 3003, 3006.) “‘Sole physical custody’ means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation” for the other parent. (§ 3007.) “Joint physical custody” means each parent shall have “significant periods of physical custody.” (§ 3004.)
In making an initial custody and visitation order, or in modifying an existing order based on changed circumstances, the court’s “overarching concern” is to ensure the best interest of the child. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 901; § 3020.) In determining the best interest of the child, the court is to consider all relevant factors, including (1) the health, safety and welfare of the child, (2) “[a]ny history” of abuse by one parent against, among others, the other parent or the child, and (3) the nature and amount of the child’s contact with the parents. (§ 3011, subds. (a)-(c), italics added; Montenegro v. Diaz, supra, at p. 255.) But “[o]nce the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, ‘the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining’ that custody arrangement. [Citation.]” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.)
This preference for continuing an existing child custody arrangement reflects the “codified policy” of section 3020, which is “to assure that children have frequent and continuing contact with both parents after the parties have separated or dissolved their marriage . . . and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.” (§ 3020, subd. (b); Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 7:310.2, p. 7-129.)
We review custody and visitation orders under the deferential abuse of discretion test. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.) Under this standard, we uphold the court’s ruling “if it is correct on any basis . . . .” (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) The court abuses its discretion in making a custody and visitation order if there is no reasonable basis on which the court could conclude its order advanced the best interest of the child, or if the court applies improper criteria or makes incorrect legal assumptions in making its order. (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.)
B. Analysis
At oral argument, Bennie argued that the court failed to consider Cynthia’s history of domestic violence against himself and J. in denying his request for sole legal and physical custody of J. The record does not support this claim. To the contrary, the record shows the court was aware of Cynthia’s acts of domestic violence, and took these matters into consideration in ordering the parties to continue to share joint legal and physical custody of J. (§§ 3011, 3020.)
In its ruling, the court expressly addressed Cynthia’s history of domestic violence against Bennie The court noted: “The parties have had significant difficulty co-parenting their daughter due in part to past events that have resulted in criminal matters involving violence against [Bennie] by [Cynthia].” The court was plainly referring to Cynthia’s September 2008 guilty plea and conviction for committing assault by means of force likely to produce great bodily injury against Bennie. (Pen. Code, § 245, subd. (a)(1).)
The conviction was based on a June 2008 incident in which Cynthia threatened Bennie with a kitchen knife. In her deposition in this matter, Cynthia claimed Bennie first threatened and pushed Cynthia, and Cynthia responded by pulling out a kitchen knife and telling Bennie to leave. Cynthia’s conviction was expunged and its records were ordered sealed. (Pen. Code, § 1203.4.) At trial in 2015, the court denied Bennie’s request to admit evidence of the conviction on the ground it was more prejudicial than probative of the custody issues before the court. (Evid. Code, § 352.)
The court’s refusal to admit the evidence of Cynthia’s 2008 conviction was not an abuse of discretion. The conviction had been expunged, and in February 2013, two years before the trial in this matter, the court found Cynthia had been “rehabilitated” since her 2008 conviction. Cynthia had completed a 52-week anger management class and parenting classes. And Dr. Amy Miller, who completed an Evidence Code section 730 evaluation of the family, opined it was in J.’s best interest to have both parents actively involved in J.’s life.
The record thus shows the court appropriately considered Cynthia’s act of domestic violence underlying her 2008 conviction (§ 3011, subd. (b)), but appropriately discounted the import of the act based on Cynthia’s rehabilitation.
The court also expressly addressed the allegations that Cynthia had physically abused J. The court wrote: “In [Dr. Simon’s] review of all the reports made in this case, there have been allegations that [Cynthia] has physically hit [J.], [J.] has reported the same, being hit with a comb on one occasion. [J.] has complained that her mother yells as does her maternal grandmother and this bothers [J.]” J. reported these incidents to her doctor around 2012, when J. was age four.
Like the act of domestic violence underlying Cynthia’s 2008 conviction, the evidence of Cynthia’s acts of domestic violence against J. also predated the court’s February 2013 order that the parties share joint legal and physical custody of J., and Dr. Miller’s opinion that both parties should be actively involved in J.’s life. At the trial in 2015, there were no new allegations that Cynthia had physically abused or yelled at J. Based on the entire record, the court appropriately discounted Cynthia’s past acts of domestic violence against J. in ordering the parties to continue to share joint legal and physical custody of J.
Lastly, Bennie argues the court violated section 3011, subdivision (e)(1), in failing to state, in writing or on the record, the court’s reasons for denying his request for sole legal and physical custody of J. We disagree. When the court awards “sole or joint custody” to a parent against whom allegations of “abuse” have been made under section 3011, subdivision (b), section 3011, subdivision (e)(1), requires the court to state its reasons for making that custody order in writing or on the record. Through its extensive findings set forth in its June 11, 2015, tentative ruling, which were incorporated into its October 16, 2015, order, the court explained why it was continuing to order the parties to share joint legal and physical custody of J., despite Cynthia’s history of domestic violence against both Cynthia and J.: Joint legal and physical custody would serve J.’s best interest.
IV. DISPOSITION
The October 16, 2015, order denying Bennie’s request for sole legal and physical custody of J. is affirmed. Bennie’s appeal from the January 5, 2016, order is dismissed. Bennie shall pay Cynthia’s costs on appeal, if any.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

MILLER
J.