Opinion
NOT TO BE PUBLISHED
APPEAL from orders and a judgment of the Superior Court of San Diego County, Ct. No. D484573, Patricia Garcia, Judge.
NARES, J.
In this dissolution action, which commenced in 2004, Allison Abbasi (Mother) and Azad Abbasi (Father) (together the parents) are engaged in a long-running dispute over custody and visitation rights involving their minor son (the child), who is now 10 years of age. In 2007 the court appointed John C. Parker, IV, Ph.D., as the child custody and visitation evaluator. Dr. Parker interviewed and evaluated the parents and their son, and in May 2008 submitted his psychological evaluation report─to which he attached his "Declaration of Child Custody Evaluator Regarding Qualifications" (form FL-326, discussed, post)─to the court. In early 2009, following a bench trial on the custody and visitation issues, the court agreed with Dr. Parker's recommendation and granted to Father sole legal custody of the child.
Appealing in propria persona, Mother challenges the court's permanent child custody order granting custody of the child to Father, contending (1) the court's order appointing Dr. Parker as a private child custody evaluator was unlawful, and thus his report and testimony should be stricken and the judgment should be reversed because the court failed to use an "Order Appointing Child Custody Evaluator" form (form FL-327) as mandated by former rule 5.225(j)(2) of the California Rules of Court; (2) Dr. Parker had no legal right to commence a psychological evaluation in this matter because he did not file with the court clerk a "Declaration of Private Child Custody Evaluator Regarding Qualifications" (form FL-326) within 10 days after notification of his appointment and before he began work on the child custody evaluation, as required by former rule 5.225(k)(1)(B), and thus the court erred by entering the untimely and outdated form FL-326 that Dr. Parker signed on May 9, 2008, and attached to his confidential report; (3) the court failed "in policy and procedure" to inform the public that it is not the practice of the court to verify any of the requirements (including licensure, education, content of an evaluator's curriculum vitae, court-required training, and continuing education) or standards that apply to private child custody evaluators, and it erred in failing "to allow the parties to be aware of what standard they were held to in ensuring [Dr. Parker] was qualified"; (4) the court should have admitted "in part or [in] full" at trial the documents marked as exhibit No. 11 that she has lodged in support of this appeal and that are identified in her notice of lodgment filed on September 8, 2010, as "[l]etters from [Dr. Bruns] dated June 6, 2006, January 10, 2007, and January 28, 2009"; and (5) the court erred by finding that Dr. Parker was in compliance with, and acted within the defined scope of duty pursuant to, the court's orders and state and local laws.
We affirm the orders and judgment.
BACKGROUND
The parents began living together in 1996, and they were married in 1998. Their child was born in 2000, they separated in 2004, and Father petitioned for dissolution of the marriage in June 2004. Several hearings were held and temporary orders were issued regarding custody and sharing of the child. At the August 2006 trial, the issue of the final custody orders was reserved.
April 2007 psychological evaluation order
On April 26, 2007, following a pretrial hearing at which both Mother and Father were present and represented by counsel, the court ordered that they and their child undergo psychological evaluations. In its written order (the April 2007 order), the court indicated that the purpose of the evaluations was "to determine which parent is able to facilitate the child's relationship with the other; to determine the child's needs and relationship with each parent and the parents' ability to meet the child's needs, including a five-axial diagnosis of each parent and recommendations for individual needs (including substance abuse issues); and to determine if it is emotionally detrimental to continue to share the child jointly and/or if one parent should be in charge."
The record on appeal does not include a reporter's transcript of the April 26, 2007 hearing.
The April 2007 order specified that Father would advance the cost of the evaluation, "subject to re-allocation at the time of trial." It also provided that, if the parents were unable to agree on the evaluator within two weeks, the issue could be presented ex parte to the court.
June 2007 order appointing Dr. Parker
On June 28, 2007, about two months after it issued the April 2007 order, the court issued a written order (the June 2007 order) under Evidence Code section 730, rule 5.10.4 of the San Diego County Superior Court Local Rules, and the April 2007 order (discussed, ante), appointing Dr. Parker as the child custody and visitation evaluator.
Under Evidence Code section 730, the court may appoint an expert to investigate, render a report and testify as to any pertinent matter. Section 730 provides in part: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required."
Dr. Parker's May 2008 psychological evaluation report and his form FL-326
Dr. Parker interviewed and evaluated the parents and their child pursuant to the June 2007 order. In his May 2008 45-page report, Dr. Parker presented 21 recommendations, including the recommendation that Father have sole legal custody of the child, and listed the 95 documents he reviewed. Noting that the child "is loved and attached to each of his parents albeit in differing fashion, " Dr. Parker stated that "it is not likely that [the child] will be at risk of physical harm and/or neglect in either parental household under low levels of arousal."
He opined, however, that "[u]nder moderate to high levels of arousal, ... this circumstance can change in the blink of an eye given the characterological aspects of mother's emotional and cognitive functioning. Mother has demonstrated a capacity to become overwhelmed and lash out without much forethought to the consequence of her own behavior or the impact of this on a tender years child. The presence of highly sensitized opinions, and active disagreements regarding the present time-share, particularly given the child's tender years, and the absence of efficient co-parenting or co-parenting communication, make it unlikely that father and mother will be able to cooperate in co-parenting and time-share with the minor child, in a[n] optimal fashion, for the near foreseeable future. Mother's characterological issues and present sense of entitlement[] further indicates that the two parents will not be able to effectively cooperate and co-parent the minor child for the near foreseeable future, if ever. It seems likely that maternal emotional over-reactivity will represent, at least for the foreseeable future, a very problematic obstacle...."
With his report, Dr. Parker also submitted to the court his form FL-326 (revised January 1, 2003), which he signed on May 9, 2008, and which stated, "I meet all of the requirements for a child custody evaluator set forth in Family Code sections 1816 and 3111 and rules 5.220, 5.225 and 5.230 of the California Rules of Court."
February 2009 trial; statement of decision
The bench trial on the custody and visitation issues was held in early February 2009. Although the record on appeal indicates that Dr. Parker gave oral testimony during the trial, it does not contain a transcript of that testimony. The court indicated it would "evaluat[e] all of the evidence" in determining the orders it believed would be in the child's best interest and stated it was giving Dr. Parker's evaluation and report "considerable weight in that Dr. Parker was performing an evaluation as a[n] Evidence Code [section] 730 expert at the request of the court."
In May 2009 the court issued its statement of decision, finding that Dr. Parker "followed appropriate procedures in arriving at his report" and was not influenced by the fact that it was Father who advanced his fees. Agreeing with Dr. Parker's recommendation, the court awarded to Father sole legal custody of the child. The court found that although "each parent has something positive to contribute" to their child, "[t]he problem for [the child] with his mother is the issue of enmeshment and a diminished capacity on her part for differentiating herself from him, " and her inability to put the child's needs ahead of her own. The court found that "this custody/visitation case is a high-conflict case, " and noted Dr. Parker's expert opinions that Father was better able to meet the child's needs on a consistent basis, and he was also better able to facilitate the child's relationship with the other parent. Noting also that Father "is by no means perfect, " the court found that "any concerns Dr. Parker found with him as a parent were 'benign, ' as he testified, while he found [Mother's] parenting to be 'toxic.' " The court entered judgment based on its statement of decision.
DISCUSSION
I. COURT'S FAILURE TO USE FORM FL-327
Mother first contends the June 2007 order appointing Dr. Parker as a private child custody evaluator was unlawful, and thus his report and testimony should be stricken and the judgment should be reversed, because the court failed to use an "Order Appointing Child Custody Evaluator" form (form FL-327) as mandated by former rule 5.225(j)(2) of the California Rules of Court. This contention is unavailing.
A. Background
California Rules of Court, rule 5.225(a) provides that "[t]his rule provides the licensing, education and training, and experience requirements for child custody evaluators who are appointed to conduct full or partial child custody evaluations under... Evidence Code section 730...."
In June 2007 when the court appointed Dr. Parker as a child custody evaluator in this matter, the rule on which Mother relies─former rule 5.225(j)(2) of the California Rules of Court─provided in part: "Each court... [m]ust use an Order Appointing Child Custody Evaluator (form FL-327) to appoint a private child custody evaluator...."
By amendment effective January 1, 2011, the provisions of former rule 5.225(j)(2) of the California Rules of Court are now found in rule 5.225(k)(2) of those rules.
1. June 2007 order appointing Dr. Parker
The record shows the court did not use form FL-327 in appointing Dr. Parker as a child custody evaluator in this matter, as required by former rule 5.225(j)(2) of the California Rules of Court. The court's June 2007 order was a specially prepared written order that (1) incorporated the provisions of the court's April 2007 order delineating the scope and purpose of the "updated" psychological evaluations of the parents and the child to be conducted by Dr. Parker; (2) requested a written report from him, including specific recommendations regarding a parenting plan; and (3) directed that the report "be submitted to the court and to counsel only, " but authorized counsel to review the report with their clients. The June 2007 order also provided that, "[p]ursuant to the Local Rules, [Dr. Parker's] report will be admitted into evidence without further foundation, and considered by the Court at the time of the hearing, subject to a party's right to cross-examine [him]." (Italics added.)
B. Applicable Legal Principles
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) "A fundamental principle of appellate practice is that an appellant ' "must affirmatively show error by an adequate record.... Error is never presumed.... 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent....' (Italics omitted.)" ' " (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) It is the appellant's responsibility to include in the appellate record the portions of the record relevant to the issues on appeal. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) " ' "Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs." ' " (In re Hochberg (1970) 2 Cal.3d 870, 875, disapproved on other grounds by In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3.) Furthermore, the appellant must provide citations to legal authority and argument in support of a claim of error, or a court may deem the claim waived, because the court is "not bound to develop appellant['s] arguments for [her]." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see also Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must be supported by "argument and, if possible, by citation of authority"].)
C. Analysis
Mother has failed to meet her burden of demonstrating the court committed prejudicial error requiring reversal of the judgment entered on the reserved issues of child custody and visitation based on the court's consideration of Dr. Parker's report and oral testimony. Her claim that Dr. Parker's report and testimony should be stricken and the judgment should be reversed because the court failed to use form FL-327 is based on her conclusory assertion that the June 2007 order appointing Dr. Parker was "incomplete, " and it did not contain the requisite "elements." However, she does not specify in what manner the court's order was incomplete, nor does she specify the "elements" she claims were missing in the June 2007 order. Thus, she has not demonstrated she has suffered any prejudice as a result of the court's failure to use form FL-327. In addition, Mother cites no authority to support her suggestion that a trial court's use of a specially prepared order, rather than a form FL-327, to appoint a private child custody evaluator necessarily renders the order "unlawful" so as to require the striking of the evaluator's report and trial testimony, as well as the reversal of the judgment based on that evidence. This court is not bound to develop Mother's arguments for her. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830; Cal. Rules of Court, rule 8.204(a)(1)(B).) We thus conclude Mother has failed to meet her burden of demonstrating the court committed prejudicial error.
Mother also contends the court "den[ied her] any say in the matter, as [she] was in pro per." This contention is unavailing as Mother has failed to show she was denied "any say" in the matter of Dr. Parker's appointment. The court's April 2007 order expressly provided the parties an opportunity to "agree on the evaluator, " but provided that "[i]f they [could] not agree within two weeks, " the issue would be decided by the court in an ex parte proceeding. The record also shows the court appointed Dr. Parker more than two weeks later, on June 28, 2007, pursuant to the April 2007 order. The June 2007 order appointing Dr. Parker is presumed to be correct on appeal, and "all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133; Null v. City of Los Angeles, supra, 206 Cal.App.3d at p. 1532.) We note that a party who chooses to act as her own attorney " 'is to be treated like any other party and is entitled to the same, but no greater consideration accorded to other litigants and attorneys.' " (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) In any event, the record shows that Mother was represented by counsel at trial. She has failed to show, with supporting citations to the record, that she or her counsel objected in the trial court to the court's use of a specially prepared order, rather than form FL-327, when it appointed Dr. Parker pursuant to the provisions of the April 2007 order.
II. CLAIM THAT DR. PARKER FAILED TO PROPERLY FILE HIS FORM FL-326
Mother also contends the judgment should be reversed on the ground Dr. Parker had no legal right to commence a psychological evaluation in this matter because he did not file with the court clerk his form FL-326 within 10 days after notification of his appointment, and before he began work on the child custody evaluation, as required by former rule 5.225(k)(1)(B) of the California Rules of Court, and thus the court erred by entering the untimely and out-of-date form FL-326 that Dr. Parker signed on May 9, 2008, and attached to his confidential report. This contention is unavailing.
A. Background
In June 2007 when the court appointed Dr. Parker as a child custody evaluator in this matter, the rule on which Mother relies─former rule 5.225(k)(1)(B) of the California Rules of Court─provided: "Private child custody evaluators must complete a Declaration of Private Child Custody Evaluator Regarding Qualifications (form FL-326) and file it with the clerk's office no later than 10 days after notification of each appointment and before any work on each child custody evaluation has begun."
The provisions of former rule 5.225(k)(1)(B)of the California Rules of Court are now found in rule 5.225(l)(1)(B) of those rules.
As already noted, the court appointed Dr. Parker as a child custody evaluator in this case in June 2007. The record shows he submitted his 45-page report to the court almost a year later in May 2008. With his report, Dr. Parker also submitted his form FL-326 (rev. Jan. 1, 2003), which he signed on May 9, 2008.
The trial was held about nine months later in February 2009.
B. Analysis
Evidence Code section 353 precludes a party from complaining on appeal that evidence was inadmissible on a certain ground unless he or she made a timely and specific objection on that ground below. (Evid. Code, § 353, subd. (a).)
Evidence Code section 353, subdivision (a) provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion."
Here, Mother challenges the court's admission into evidence of Dr. Parker's report and oral testimony on the ground Dr. Parker failed to timely file and serve "the most current version" of form FL-326, which she asserts was "due no later than July 10, 2007." She has failed, however, to meet her burden on appeal of showing, with citations to the record, that she objected at trial to the admission of Dr. Parker's report and oral testimony on this specific ground. We thus conclude she has forfeited this claim. (Evid. Code, § 353, subd. (a).)
III. COURT'S FAILURE TO PROVIDE INFORMATION TO THE PUBLIC AND THE PARTIES
Mother next contends the court "failed in policy and procedure" to inform the public that "it is not the practice of [the] San Diego [County] Superior Court to verify[] any of the requirements, including licensure, education, content of an evaluator's Curriculum Vitae, court required training and continuing education, or any other legal standards set forth under Evidence Code [section] 730, California Rules of Court or San Diego Superior Court Local Rules, and any other professional standards... a 'court recognized' evaluator is held to by licensure or governing board." She asserts the court erred in failing "to allow the parties to be aware of what standard they were held to in ensuring [Dr. Parker] was qualified." Mother also contends that "[d]ocuments [she] sought and received after she was properly aware show that Dr. Parker is likely NOT qualified and has falsified elements of [h]is Curriculum Vitae, " which "[o]n its face... is suspect and unprofessional by the nature of its content." Mother's contentions are unavailing.
Mother is again challenging the court's admission of Dr. Parker's report and oral testimony into evidence. Complaining that the court failed to allow her to "be aware of what standard [she was] held to in ensuring [Dr. Parker] was qualified, " she suggests he was not qualified to serve as a child custody evaluator in this matter. However, the record shows that the June 2007 order appointing Dr. Parker as a private child custody evaluator did provide notice to the parties and their trial counsel that, "[p]ursuant to the Local Rules, [Dr. Parker's] report will be admitted into evidence without further foundation, and considered by the Court at the time of the hearing, subject to a party's right to cross-examine [him]." (Italics added.) As already noted, Mother was represented by counsel at trial, and she had the right to cross-examine Dr. Parker regarding his qualifications. Dr. Parker submitted his report in May 2008, nine months before the issues of child custody and visitation were tried before the court in February 2009, which gave Mother and her counsel adequate time to conduct discovery regarding applicable state and local rules and prepare for Dr. Parker's cross-examination at trial, which the court's June 2007 order expressly notified Mother she had the right to conduct. On this record, we conclude Mother has failed to demonstrate that any error by the court was prejudicial.
IV. COURT'S FAILURE TO ADMIT DR. BRUNS'S LETTERS
Mother further contends the court should have admitted "in part or [in] full" at trial the documents marked as exhibit No. 11 that she has lodged in support of this appeal and that are identified in her notice of lodgment filed in this court on September 8, 2010, as"[l]etters from [Dr. Bruns] dated June 6, 2006, January 10, 2007, and January 28, 2009." This contention is unavailing.
Rule 8.204(a)(1)(B) of the California Rules of Court provides that an appellant's opening brief must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority." Rule 8.204(a)(1)(C) of those rules provides that the brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1245, fn. 14; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
Here, Mother's opening brief is virtually devoid of legal argument and citations to legal authority with respect to her claim the court should have admitted the subject letters into evidence. In a conclusory manner, she asserts that "[t]he Court erred in dismissing this evidence, under Federal Rules of Evidence, Section 803(4)...." Those federal rules have no application in this case, which is governed by the California Evidence Code. Furthermore, her opening brief fails to support her evidentiary claim with citations to the appellate record, and thus she has failed to show that she offered the letters into evidence and stated specific grounds in support of her claim they should have been admitted. For these reasons, we conclude Mother has forfeited her claim on appeal.
V. REMAINING CLAIMS
Last, Mother contends the court "erred by finding that [Dr. Parker] was in compliance with and acted within the defined scope of duty pursuant to court orders and state and local laws." In support of this contention, she again asserts that Dr. Parker "was not legally joined to the case [and he] failed to properly file [form] FL-326." She challenges Dr. Parker's report and testimony on numerous grounds, asserting he "ignored the directives of the Court" and "conducted an investigation far beyond what he was assigned to by the Court, " he was biased, he did not review police records and other records she provided to him, his review of documents was "biased and unbalanced, " In an almost incomprehensible statement, she concludes that "[t]he Court excised unlawful orders and judgments and allowed its expert [Dr. Parker] and [Father] to engage in unlawful and bias[ed] reporting and witness testimony to the Court, absent of findings of penalty of perjury and sanctions required by law therein."
These contentions are all unavailing. We have already addressed Dr. Parker's form FL-326. Mother has failed to show, with citations to the record, that she preserved her claims of evidentiary error by making timely and specific objections on these various specific grounds below, as she was required to do under Evidence Code section 353, subdivision (a). (See fn. 5, ante.)
DISPOSITION
The orders and judgment are affirmed.
WE CONCUR: HUFFMAN, Acting P. J.AARON, J.