Opinion
F084010
02-14-2023
M.D., Plaintiff and Respondent, v. J.M., Defendant and Appellant.
Laura M. Boyd for Defendant and Appellant. Brungess and Kezirian and Teri Ann Kezirian for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County, No. 20CEFL03002 Cindy J. Hopper, Commissioner.
Laura M. Boyd for Defendant and Appellant.
Brungess and Kezirian and Teri Ann Kezirian for Plaintiff and Respondent.
OPINION
THE COURT[ *]
Appellant J.M. challenges the issuance of a domestic violence protective order (DVPO) listing his daughter (daughter) as a protected party. The only issue raised in this appeal asks whether the evidence introduced at the hearing on the petition for the DVPO supports including daughter as a protected party. Following our review of the record provided to this court, we affirm the decision of the trial court.
PROCEDURAL AND FACTUAL SUMMARY
On July 29, 2020, M.D. filed a petition seeking a DVPO, and asking for an ex parte temporary restraining order against J.M. The ex parte temporary restraining order was granted on July 30, 2020. Following numerous continuances, a contested hearing for the DVPO was finally held on December 15, 2021.
Our summary of the contested hearing focuses only on facts relevant to the question posed here, whether daughter should have been included as a protected party in the DVPO.
During this hearing, a licensed marriage and family therapist who was seeing daughter once a week testified that daughter was being treated for posttraumatic stress disorder (PTSD). M.D., mother of daughter, also testified at the hearing. M.D. and J.M. had been married, but separated in 2018 and divorced in 2020 while living in Oregon. Daughter is the child of that marriage and was nine years old at the time of the contested hearing. After the divorce, M.D. and daughter lived in a safe house in Texas before moving to the Fresno County area and being placed in a couple of different programs supporting victims of domestic violence.
M.D. explained that when they were all living together in Oregon, J.M. would violently sexually assault her while daughter was sleeping in her own bedroom or playing in the yard. M.D. also described at least one incident in a car when J.M. used a knife in a threatening manner aimed at both daughter and her. M.D. testified daughter is in a constant state of fear, which has resulted in self-harm, nightmares, and some suicidal thoughts. At the close of M.D.'s testimony, J.M.'s attorney chose not to present any evidence.
On February 16, 2022, the trial court issued an oral ruling on the petition. The court started its ruling by noting its decision was based on the "moving and responsive paperwork, … [and] on the testimony received at the contested hearing which the [c]ourt heard." The court went on to state, "the child currently manifests-and there has been testimony-the child manifests great fear of [J.M.] and has continued physical manifestations of abuse as testified by [M.D.] that the child cannot control herself insofar as she engages in self-harm, she cannot care for herself and she is so afraid and has made self-harming statements." Concluding M.D. had met her burden of proof, the trial court granted the DVPO for a period of five years.
DISCUSSION
Again, J.M. challenges only the sufficiency of the evidence supporting the decision of the trial court to include daughter as a protected party in the DVPO. However, while we will discuss the law applicable to such a review, we note our concern an inadequate record has been provided to this court to allow a complete review.
I. An Appellant Has an Obligation to Provide an Adequate Appellate Record
The appellant has the burden of establishing error and without an adequate record a reviewing court will presume the evidence supports the judgment. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1137.) We note, the cardinal rule of appellate review is that a judgment or order of the trial court is presumed correct, and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Additionally, a party to an appeal cannot argue trial exhibits (whether admitted into evidence, rejected, or lodged) undermine the judgment when those exhibits are not transmitted to the appellate court. (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 656-657.)
The clerk's transcript provided to this court contains only the DVPO signed by the trial commissioner after the contested hearing, the notice of appeal, the notice designating the record on appeal, and the register of actions. We have not been provided with the original verified petition requesting the DVPO, or any exhibits admitted into evidence during the hearing. We cannot simply conclude that these items played no part in the trial court's decision to issue the DVPO listing daughter as a protected party. To the contrary, the trial court noted M.D. had testified to information referenced in her DVPO petition. Both at the trial level and here, J.M. now contends the petition should not provide evidence "due to issues of hearsay and lack of foundation as to any issues concerning [daughter]." However, the petition has not been provided to this court. We are unable to consider whether M.D.'s testimony at trial cured any evidentiary problems posed in that petition.
II. The Record Actually Provided Contains Some Evidence Supporting the Trial Court's Decision to Include Daughter as a Protected Party
Again, our review of this matter is limited by the record we have been provided. We start with the premise that the ruling of the trial court is correct. J.M. had the burden to highlight how the trial court erred in making its findings as shown through an adequate appellate record.
While a DVPO is reviewed using the abuse of discretion standard of review, when considering the trial court's factual findings we apply the substantial evidence rule. (M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 1143-1144.) The inquiry is whether substantial evidence supports the court's finding, not whether a contrary ruling might have been made. (In re Alexandria P. (2016) 1 Cal.App.5th 331, 355.) Despite the minimal record provided by appellant, we believe the record contains evidence supporting the trial court's decision to include daughter as a protected party in the DVPO.
Family Code section 6320, subdivision (b) allows a child living with her mother to be added to a DVPO upon "a showing of good cause." Specifically, "the court may include in a protective order … a minor child residing in the residence or household of either the petitioner or the respondent." (Fam. Code, § 6320, subd. (b).) When determining whether there is good cause to include children as protected parties, the plain language of the statutory scheme requires the court to consider the totality of the circumstances. (M.S. v. A.S., supra, 76 Cal.App.5th at p. 1144; see also Fam. Code, § 6301, subd. (c).) However, a finding there was potential jeopardy to the safety or well-being of a child is not necessary before including a child in a DVPO as a protected party. Instead, "it is but one factor the court must consider in the totality of the circumstances." (M.S. v. A.S., at p. 1144.)
The totality of the circumstances displayed in the record of the contested hearing shows daughter lived in an environment containing violence and that while she was not the subject of the violence, she may have witnessed it. Furthermore, and on at least one occasion, daughter was threatened by J.M. with a knife while in a car with her mother. Daughter suffers from PTSD, is afraid of J.M., engages in self-harm, and has expressed suicidal thoughts. These conclusions are supported by the testimony provided at the contested hearing, the transcript of which we have been provided. Based on this evidence, we cannot conclude the trial court abused its discretion when issuing the five-year DVPO with daughter as a protected party.
In contrast, we are unable to address evidentiary concerns raised by J.M. which are related to documents used at the contested hearing, but which are not part of this appellate record.
DISPOSITION
The order of the trial court issuing a five-year domestic violence protective order against J.M., which lists his daughter as a protected party, is affirmed. M.D. is awarded her costs on appeal.
[*] Before Levy, Acting P. J., Poochigian, J. and Snauffer, J.