Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SDR1401
BUTZ, J.In a custody dispute involving plaintiff Gayle S. (Mother) and defendant/appellant Daniel J. (Father), the unmarried parents of Cassandra (the Minor), the court awarded sole legal and physical custody to the Minor’s maternal grandmother, objector/respondent Nancy P. (Grandmother), with unsupervised visitation for Father. Subsequently, the court temporarily suspended Father’s unsupervised visitation upon the ex parte application of the Minor’s appointed counsel. After an evidentiary hearing, the court granted Father supervised visitation.
Three months later, Father moved to gain sole legal and physical custody of the Minor or, alternatively, to eliminate the requirement of supervised visitation. The court denied both motions. Father appeals from the court’s orders requiring supervised visitation with the Minor and denying his petition for modification of custody. We shall affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were involved in a relationship that resulted in the birth of the Minor in 1992. The couple separated approximately one year after their daughter’s birth. The Minor has been diagnosed as having a borderline range IQ and is “developmentally delayed.” After the separation, Mother was awarded primary custody. Eventually, the court granted Father joint legal custody and visitation every other weekend. Until September 2003, the Minor primarily resided with Mother and Shawn B., Mother’s current husband.
In February 2003, the Minor told Grandmother that Shawn B.’s father, Tom B., had molested her. Grandmother notified Child Protective Services and criminal charges were filed. Mother voluntarily placed the child with Grandmother, pending Tom B.’s criminal trial. The Minor moved into Grandmother’s home in September 2003.
In November 2003, Father learned of the molestation charges and filed a motion for custody. Grandmother was joined as a party and filed her own motion for custody. The court granted Father temporary custody in December 2003, pending a full custody review and determination.
Following a trial, the court issued a written decision on May 10, 2005, awarding custody to Grandmother. The court concluded “[t]here is no question that the [Minor] was molested some time prior to February of 2003” and that Tom B. was the likely perpetrator.
The court expressed serious reservations about awarding Mother custody, noting that Mother has “demonstrated [a] limited ability to deal with stress.” Moreover, Shawn B. has “an extensive criminal record,” has been accused of physically and emotionally abusing the Minor, and of pressuring her to change her testimony against his father, Tom B. The court feared that “contact with [Shawn B.] may subject [the Minor] to further exposure to [Tom B.].”
The court also did not feel comfortable awarding Father custody because of his history of violent behavior, drug abuse, and mental instability. The court noted that Father’s previous partners, Mother and Angela L., as well as his current wife, Trudy J., had “markedly similar” descriptions of how Father physically and emotionally abused them and their children. Each woman reported that Father “left them and their children for days at a time with no explanation and no provision for food.” During these periods of absence, Father “either gambled or engaged in drug binges, or both,” and “[w]hen he returned, he was accusatory and paranoid, demanding that they admit to [engaging in] extra-marital affair[s] during his absence.” The court found Father’s current home to be “chaotic and marked by domestic violence.”
The court also noted that in the opinion of court-appointed psychologist, Dr. Cynthia Neuman, Father “suffers from an anti-social personality disorder,” has “demonstrated serious impairment in his ability to think logically and coherently,” has a limited ability to cope with life’s demands, and has “demonstrated poor impulse control.”
In contrast to Mother’s and Father’s parental deficiencies, the court noted that the Minor’s Grandmother “has historically provided significant care for [the Minor] including emotional and financial support. Since [the Minor] was born, [Grandmother] has been a steady and consistent presence in her life. She has seen her a minimum of one time per week and often [the Minor] and her mother resided with [Grandmother].”
The court found “by clear and convincing evidence that custody to either parent would be detrimental to [the Minor].” Based on Grandmother’s history of providing emotional and financial support, the court awarded sole legal and physical custody of the Minor to Grandmother. The court granted Mother visitation under Grandmother’s supervision, and granted Father unsupervised visitation every other weekend. On June 10, 2005, the court filed its formal order awarding custody to Grandmother. No appeal was taken from that order.
On September 30, 2005, the Minor’s counsel, Rebecca Bowman, filed an order to show cause (OSC), asking the court to suspend Father’s unsupervised visitation. Her declaration explained that the Minor “is ill-equipped to[] handle Father’s bullying tactics and intimidation of her in his attempt to regain custody.” Counsel also noted that soon after gaining unsupervised visitation, Father started manipulating the Minor into making untrue negative statements about Grandmother and untrue positive statements about Father. Father also filed a petition for custody in Sacramento County, which was denied for lack of jurisdiction, and subjected the Minor to interrogation by the National Association for the Advancement of Colored People (NAACP). Stated Bowman: “This interrogation demonstrates Father’s complete lack of insight or complete disregard for the well[-]being of his daughter. [The Minor] is in desparate [sic] need for a break to the continuing barrage of Father’s misguided attempts for custody, she’s overwhelmed and too emotionally fragile to counter Father. She has to be hypervigilent and always on edge around [Father] and I do not believe supervised visits would resolve this.” Based on Attorney Bowman’s declaration, the court ordered an immediate suspension of Father’s visitation pending further review.
On January 13, 2006 (all further calendar references are to that year), a hearing was held on the OSC to suspend Father’s visitation. Attorney Bowman informed the court that the Minor’s therapist had “noticed a big improvement in [the Minor’s]” emotional state since she ceased having visits with her Father and that the cessation of visits had “given [the Minor the] breathing room that she desperately needed.” Although the therapist advocated the continuing suspension of visitation, the trial court granted Father visitation twice a month, supervised by a licensed professional.
Although the hearing and ruling took place on January 13, the court’s formal order was not filed until July 21.
On April 4, Father filed a motion to modify custody and visitation, asking that the court award him sole legal and physical custody, or alternatively eliminate the requirement of supervised visits.
In his moving papers, Father accused Grandmother and her husband of being “racists,” claimed he was a more suitable guardian for the Minor, and mentioned the three-year-old molestation allegations against Tom B. He also asserted that principles of due process required that he be reunified with his daughter and complained about the cost of supervised visitation.
On June 5, 2006, the court denied Father’s motion to modify custody and visitation, finding that he had failed to “articulate[] a change of circumstances justifying any modification to the parenting plan,” as set forth in the written decision of May 10, 2005.
Father appeals from both the order imposing supervised visitation and the subsequent order denying his motion to modify custody and visitation.
DISCUSSION
I. Order Refusing to Modify Custody
Father claims the court erred by denying his motion for custody of the Minor. His arguments are not only meritless but border on the frivolous.
A. Standard of Review
“‘The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.’” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).) The court’s findings of fact are reviewed for substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) We review the evidence in the light most favorable to the order. Any conflicts must be resolved in favor of the trial court. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.)
Father refuses to accept this standard: He reasons instead that since the court earlier “decided to undertake the extraordinary step of placing the [Minor] with the maternal grandparent,” and “obliterated [Father’s] legal and physical custodial rights,” the court’s findings in the present case should be reviewed de novo. For support, Father cites cases such as In re B. G. (1974) 11 Cal.3d 679, 688 (holding that “the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights”); Adoption of Kay C. (1991) 228 Cal.App.3d 741, 747 (articulating the constitutional principle that “no state shall deprive any person of life, liberty, or property without due process of law”); and Gray v. Whitmore (1971) 17 Cal.App.3d 1, 21 (which explains that deprivation of a fundamental right is permissible under substantive due process only “if the conduct from which the deprivation flows is prescribed by reasonable legislation reasonably applied”).
This hardly qualifies as legal argument. None of the general constitutional principles set forth in the cited cases even remotely supports the proposition that we should cast aside settled principles of appellate review and review the trial court’s factual findings in this case de novo.
A party’s failure to cite pertinent authority or tender intelligible legal argument may be deemed an abandonment of the issue on appeal. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117; accord, Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Since Father offers no cogent argument to the contrary, we adhere to the deferential abuse of discretion test.
B. Change of Circumstances
“Although the statutory scheme governing custody adjudications only requires courts to ascertain the child’s best interest [citation], the best interest standard has an added twist once a ‘final’ judicial custody determination is in place: A party seeking to modify a ‘permanent’ custody order can do so only upon a showing of a significant change of circumstances so affecting the child that modification is essential to the child’s welfare. Absent such a showing, any modification would be an abuse of discretion as denying the child the benefits of a stable home environment and thus would not be in his or her best interest.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 17:295, p. 17-69 (hereafter Hogoboom), citing Montenegro, supra, 26 Cal.4th at p. 256.)
Father advances no reasoned argument contesting the trial court’s finding of no substantial change of circumstances. Instead, he argues that the “rule that a judgment of custody can only be changed upon a showing of a substantial change of circumstances must give way to the federal Constitution.” From this premise, he concludes, “the trial court had a duty and an obligation to correct itself, and to cease its maintenance of an unconstitutional custody judgment.” (Italics added.)
Father thus tries to evade the change-of-circumstances test in favor of an attack on the original order awarding Grandmother custody. Indeed, his brief is stacked with a host of similar arguments: He contends that the court had no “compelling basis” to remove his child from his custody; that “[a]s a matter of law, the trial court’s findings during the initial trial of custody do not rise up to a level of a compelling basis to eliminate legal custody” (italics added); that the custody order impermissibly separated the Minor from her half siblings; and that the 2005 order was “an illegal custody arrangement.”
While couched as grounds for reversing the order denying modification, these arguments are, in reality, nothing more than thinly veiled attacks on the court’s 2005 order awarding permanent legal and physical custody to Grandmother. As such, they cannot succeed. “Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.” (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436.) “‘If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review.’” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) Because Father did not appeal from the 2005 order, it is beyond the scope of appellate review, and his belated attacks on it here are futile.
At one point in his brief, Father argues that the trial court should not have used the substantial change-of-circumstances test because it previously awarded custody to a grandparent rather than a natural parent. He cites Troxel v. Granville (2000) 530 U.S. 57 [147 L.Ed.2d 49] (Troxel), in which the United States Supreme Court struck down a state statute authorizing nonparental visitation as unconstitutional because it violated the mother’s due process right to make decisions concerning the care, custody, and control of her children. (Id. at pp. 65-69 [147 L.Ed.2d at pp. 56-59].) The Court held the statute violated the parent’s rights by allowing a court to disregard “any decision by a fit custodial parent concerning visitation.” (Id. at p. 67 [147 L.Ed.2d at pp. 57-58].) Troxel has no bearing on this case because Father was adjudicated to be an unsuitable custodial parent by virtue of a final order, from which no appeal was taken.
Nor does Father’s citation to Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551] assist him. There, a state supreme court held that a father could properly be separated from his children upon proof of the single fact that he and the children’s mother had not been married. (Id. at pp. 646-647 [31 L.Ed.2d at pp. 555-556].) The federal high court reversed, holding that the father was entitled to a hearing on his fitness before the court could remove the children from his custody. (Id. at p. 658 [31 L.Ed.2d at p. 563].) Unlike the father in Stanley, who lost custody of his children without a fitness hearing, Father lost custody of his daughter after an evidentiary hearing anda judicial finding by “clear and convincing evidence” that awarding custody to him would be detrimental to the Minor. Nothing in Stanley even remotely supports an argument for reversal of the court’s order refusing Father’s request for modification.
Father’s remaining arguments in support of reversal are woefully deficient and may be dismissed for the following reasons: (1) while faulting the trial court for applying the change-of-circumstances test, Father presents no alternative standard; (2) he fails to recite the evidence in the record favorable to the order; and (3) he makes no demonstration that a finding of changed circumstances was compelled by the record.
“An appealed-from judgment or order is presumed correct.” In re Sade C. (1996) 13 Cal.4th 952, 994.) “‘It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) A failure to state the evidence both favorable and unfavorable with respect to the judgment forfeits appellant’s evidentiary claims. (Ibid.) In sum, Father has failed to overcome the presumption that substantial evidence supported the order. Consequently, we find no basis for reversal.
II. Order Requiring Supervised Visitation
Father contends that the trial court abused its discretion when it ordered supervised visits with the Minor.
Trial courts have broad discretion in crafting visitation orders and establishing a visitation schedule; “the sole guideline is the child’s best interest.” (Hogoboom, supra, ¶ 7:485, pp. 7-186 to 7-187 (rev. # 1, 2005), citing Fam. Code, § 3100, subd. (a) & In re Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1028.) “‘The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.’” (Montenegro, supra, 26 Cal.4th at p. 255.)
Father asserts that “the only basis for [requiring] the supervised visits was the NAACP interview.” This is a mischaracterization of the evidence. Although the parties disputed the appropriateness of the NAACP interview, Attorney Bowman’s declaration requested suspension of Father’s visitation for a number of reasons unrelated to the interview. Among them were Father’s acts of manipulating the Minor into making untrue statements, his bullying and intimidation of the Minor, and the fact that the Minor was “too emotionally fragile” to stand up to her Father. Father does not contest the sufficiency of the evidence to support counsel’s declaration on these points.
Despite the fact that the Minor had shown marked improvement since visits with her Father had been suspended and that the therapist advocated continued suspension of visitation, the court took a more moderate approach by ordering supervised visitation twice a month. Given Father’s history of drug abuse and domestic violence, we cannot conclude the court abused its discretion by ordering supervised visitation.
Finally, Father contends that the court abused its discretion by imposing high-risk, “Level III” supervised visits. Citing a Martins’ Achievement Center “Levels of Supervision” printout attached to his moving papers, he claims that “Level III supervised visits are for people who have committed major felonies.”
We first observe the Martins’ printout does not carry the weight of law. Failure to cite apposite legal authority constitutes a forfeiture of the point. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) In any event, the printout recites a number of conditions that are appropriate for Level III visitation, none of which is the commission of “major felonies.” Among the factors justifying Level III “High Risk/Therapeutic Visitation” are: “[a]lleged or adjudicated child physical . . . abuse,” “[d]ocumented chronic substance abuse,” and “[d]iagnosed psychopathology.” The record contains evidence that Father qualified on all three counts. No error is shown.
DISPOSITION
The orders appealed from are affirmed. Respondent (Grandmother) shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: NICHOLSON, Acting P.J., RAYE, J.