Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. PF 004106, Patricia M. Ito, Commissioner.
Rebekah Villafaña, in pro. per., for Defendant and Appellant.
Earl Smith, in pro. per., for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Rebekah Villafaña (Mother) appeals from an order awarding sole legal and physical custody to Earl Smith (Father) of their minor daughter (the child). On appeal, she contends (1) that the family court erred in awarding Father sole legal and physical custody without a full evidentiary hearing, and (2) that there was a lack of substantial evidence to support the court’s finding that it would be in the best interest of the child for Father to have sole custody. She also requests that future proceedings be held before a different judicial officer. Finding no error, we affirm the family court’s order. We decline to disqualify Commissioner Ito from future proceedings involving the parties.
FACTUAL AND PROCEDURAL BACKGROUND
On August 4, 2008, Father filed a petition to establish parental relationship with the child, who was approximately one month old at the time. He sought joint legal and physical custody. Mother opposed the petition and alleged Father had “committed acts of domestic violence and abuse” against Mother within the last 30 months. Specifically, she contended he had raped her in November of 2006. Both parties were represented by counsel during the subsequent proceedings in family court.
After a full evidentiary hearing on Father’s petition on May 15, 2009, the family court found insufficient evidence to make a finding of domestic violence on the part of Father, ordered joint legal custody, and awarded physical custody of the child to Mother. Father was awarded visitation rights for Tuesdays, Saturdays, and alternate holidays. Both parties were ordered not to make “derogatory nor disparaging remarks about the other to, or in the presence of, or within the hearing of, ” the child. The court also noted that it had “no concern that [Mother] [was] presently suicidal or depressed, ” although it found Mother’s allegation that Father might have transmitted a sexually transmitted disease to the child during a supervised visit “bizarre.”
On July 13, 2009, Father filed an ex parte application for an order to immediately modify custody and visitation. He requested the court award him sole legal custody and grant him primary physical custody of the child. He also requested that counsel be appointed for the child. The basis for the ex parte application was that Mother was “unstable and a danger to herself and the child and therefore it [was] no longer in the best interest of the child... to be left in her care.” As supporting evidence, Father attached several text messages Mother had sent him, including a July 5, 2009 text message which stated, “im gona finally kill myself – u should b happy.” He also alleged that on July 7, 2009, Mother was held for observation under Welfare and Institutions Code section 5150, which permits a peace officer to detain a person who is a danger to himself or herself because of a mental disorder.
All further statutory citations are to the Welfare and Institutions Code.
Mother was informed on July 9 that Father would file the ex parte application. On July 13, she filed a response, asking the court to deny the application in its entirety. She explained the context of the suicidal text messages. Mother had become upset that Father, who had allegedly raped her, had an overnight visitation on the child’s birthday. She locked herself in the bathroom at her parents’ house before leaving the house without any explanation, which caused her parents to file a missing persons report. During this time period, she sent the text messages to Father. Mother asserted that “[a]t no time before or after this incident did I have any intention of hurting or killing myself or harming any person.” She admitted that she was held at Olive View Hospital for almost 24 hours pursuant to section 5150, in part because her father had mentioned in the missing persons report that she might be suicidal. She included supporting declarations from her sister, her father, her mother, and three friends. She also attached exhibits showing her upcoming scheduled appointments with a psychotherapist.
On July 13, 2009, the family court held a closed hearing with both counsel on the ex parte application. Afterwards, in open court, the court noted that counsel had argued vigorously and that the court was “particularly impressed” that an opposition was put together in so short a time. The court initially awarded sole physical custody to Father and granted joint legal custody to Mother and Father. In response, Mother had, as the court found, “a hysterical outburst.” She asserted that Father would hurt the child, that Father had raped Mother, that the court’s job was to protect the child, that the court was placing the child in danger, and that the child should be placed with her parents or relatives. Following these comments, the court granted sole legal custody to Father. Mother then “scream[ed] hysterically in court that the [child] belong[ed] in foster care because... Father [was] going to harm the [child], ” which caused the court to observe that Mother appeared to be “irrational.” Helen Lee was appointed as minor’s counsel. The court set a further hearing for July 21, 2009.
On July 20, Mother filed a supplemental response to the ex parte application. She requested the temporary orders of July 13, 2009 be vacated because she was “emotionally and physically capable of immediately assuming legal and physical custody” of the child. She noted that Dr. Michael Dishon had been retained to provide a psychological evaluation and that Dr. Dishon’s initial assessment was that “‘the risk for suicide is limited.’”
At the July 21 hearing, minor’s counsel recommended the court “leave the custody arrangements [sic] as it is right now so there are no further changes.” The family court agreed; it stated that Mother’s demeanor and actions on July 13 “reinforced the concern caused by the 5150 hold.” The court ordered that all prior orders in effect as of July 13, 2009 would remain in full force and effect without prejudice. A further hearing was set for August.
Dr. Dishon submitted a psychological evaluation of Mother’s mental health on July 22, 2009. In his report, Dr. Dishon stated that there was a “low likelihood” of actual suicidal attempt, but that he could not rule out the possibility. He also noted that Mother’s “awakening reaction to what she described was a rape by [Father]” was affecting Mother’s mental state. According to Dr. Dishon, “current situational stress is making [Mother] more vulnerable than usual to lapses in her self-control and psychological equilibrium. At times the stress leads to misperception of events and leads to mistaken impressions of people and the significance of their actions. This adaptive liability likely results, at times, in instances of poor judgment in which she fails to anticipate the consequences of her actions and misconstrues what constitutes appropriate behavior.”
At the August 12, 2009 hearing, minor’s counsel requested that the court “leave custody and visitation as it is right now” due to continuing concerns about Mother’s mental state. Minor’s counsel had spoken with Dr. Dishon and he had indicated that his report might change once he reviewed the suicidal text messages and Mother’s medical records. Minor’s counsel recommended that Dr. Dishon have time to review the documents, to speak with Mother’s therapist, and to observe Mother’s interaction with the child in order to prepare a supplemental report. Pending the supplemental report, minor’s counsel stated that she “would like to see the custody and visitation order remain the same.”
The family court agreed with minor’s counsel’s recommendations. It ordered Dr. Dishon to file a supplemental report and it continued all previous orders. A follow-up hearing was set for October 27, 2009.
On September 11, 2009, Dr. Dishon filed his supplemental report. In the report, Dr. Dishon concluded (1) that Mother was not at risk for suicide, (2) that there was therapeutic consensus that Mother was suffering post-traumatic stress disorder and that the most likely cause was the alleged rape by Father, (3) that Mother had a positive relationship with the child, (4) that Father should have a mental evaluation on the basis of Mother’s consistent allegations, and (5) that Mother’s stance towards Father was derived from her experience with him and not from an effort to alienate the child from him. Dr. Dishon opined that the suicidal text messages reflected “a degree of self-loathing, discouragement, and hopelessness in addressing difficulties with [Father].” He believed that Mother “now underst[ood] that making any references to death and dying will not be taken lightly and should not be communicated unless they are meant in earnest.”
As Dr. Dishon’s psychiatric evaluations of Mother were considered by the family court, we grant Mother’s unopposed request to augment the appellate record with those reports.
On October 13, 2009, Mother filed a supplemental declaration seeking to restore her overnight visits and joint legal custody. She stated that she had fulfilled all court orders and had attended or enrolled in several parenting classes.
Minor’s counsel also filed a statement of issues and contentions for the October 27, 2009 hearing. In her statement, minor’s counsel expressed concern that Mother would be unable to set aside her negative feelings towards Father to allow Father and the child to have a meaningful relationship. She referenced a complaint that Mother filed with the police about Father’s alleged rape. She recommended Mother have overnight visits with the maternal grandmother present, and that all prior orders remain in full force and effect.
A detective interviewed the parties and submitted a report to a prosecutor, who declined to prosecute the complaint.
At the October 27 hearing, Mother urged the court to reinstate the order in effect in May 2009. She contended there was no reason for Father to have sole custody as Dr. Dishon had found that Mother did not pose a danger to herself or to the child. The court declined to reinstate the order of May 2009 because Mother could not presently support a relationship between Father and the child. Instead, the family court followed the recommendations of minor’s counsel and awarded Mother overnight visits supervised by the maternal grandmother. All prior orders were continued, and a follow-up and review was set for January 26, 2010.
On January 6, 2010, Father filed a supplemental declaration informing the court that Mother had experienced a “melt down” on December 8, 2009. Mother had texted him that morning saying, “plz pick up [the child]. i hate my life. u can kp her.” Later that afternoon, Mother texted Father that “yest will b my last visit w/ [the child]- u don’t want her 2 have her mom? fine.” She also called him to tell him that “you’re a psychopath who deserves to rot in hell, ” and later texted him 10 times that “u r a psychopath who deserves 2 rot in hell.” Subsequently, Mother texted Father to apologize for having sent the prior text messages; she explained that she was upset because her friend’s mother had died. Father also alleged that Mother’s parents would not speak with him about the incident.
Mother filed a responsive declaration on January 25, 2010. She admitted having sent some “hurtful and inappropriate texts” to Father and explained that she was upset over the death of a friend’s mother. She also explained a recent incident in which Father had allegedly gone to the police to file a report of child abuse. According to Mother, the child had suffered an injury to the face during a visit with Mother, likely from a bug bite. Mother had applied ice, an antibiotic ointment, and a band-aid.
At the January 26, 2010 hearing, minor’s counsel informed the court that there were some “serious problems” since the last hearing. Specifically, (1) Mother had sent inappropriate text messages to Father in December 2009, (2) the Department of Children and Family Services (DCFS) would substantiate an allegation of general neglect against Mother based upon the handling of the injury to the child’s face, (3) Mother had fired her former therapist and was hiring a new therapist -- Mother’s fourth -- and (4) the maternal grandmother was not an appropriate monitor because she neglected to keep minor’s counsel informed about these incidents. Mother’s counsel objected to some of the testimony on the basis of hearsay, but the objections were overruled. During subsequent argument, Mother’s counsel asserted that no admissible evidence had been produced relating to the DCFS action, but admitted that Mother had sent inappropriate text messages and had fired her therapist, although it was her third therapist, not her fourth therapist as minor’s counsel had stated.
On February 16, 2010, the family court ordered that Father be awarded sole legal and physical custody of the child, that Mother have visitation rights with the child on Fridays and Saturdays, supervised by a professional monitor or a responsible adult agreed upon by both parents, and that all orders not in conflict with the present order remain in full force and effect. On March 26, 2010, Mother filed a notice of appeal from the February 16, 2010 order.
DISCUSSION
A. Custody and Visitation Orders
Mother contends the family court erred on both procedural and substantive grounds in awarding Father sole legal and physical custody of the child. Specifically, she contends (1) that the court could not award Father sole custody without first holding a full evidentiary hearing, and (2) that the court’s finding that it was in the best interest of the child for Father to have sole custody was not supported by substantial evidence. We disagree.
We review custody and visitation orders under the deferential abuse of discretion test. “The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Factors that may be considered in determining the best interest of the child include “the child’s health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child’s contact with the parents.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956; see also Fam. Code, § 3011 [same].) Finally, “[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.)
Here, Mother contends the family court abused its discretion by changing the May 2009 custody and visitation order without holding a full evidentiary hearing. Mother, however, has never requested a full evidentiary hearing on the change in custody. She has never objected to the post-May 2009 custody and visitation orders as procedurally defective. In addition, until the current appeal, she has never sought appellate review of the trial court’s orders. (See In re Carrie W. (2003) 110 Cal.App.4th 746, 755 [an appellate court will not ordinarily consider procedural defects or erroneous rulings where an objection could have been, but was not, presented in the trial court.])
Moreover, Mother was not harmed by the lack of a full evidentiary hearing. She was present and represented by counsel at the hearings on July 13, July 21, August 12, October 27, 2009 and January 26, 2010. Mother does not allege that she made an offer of proof that was rejected by the court. Indeed, she was able to submit extensive evidence, including (1) an opposition to the ex parte application, (2) two psychological evaluations by Dr. Dishon, and (3) numerous supplemental and supporting declarations that showed her fitness as a custodial parent and Father’s lack thereof. On appeal, Mother does not contend that she would have produced additional evidence at a full evidentiary hearing. The record on appeal shows that Mother’s evidence was considered by the family court. For example, at the July 21, 2009 hearing, the court indicated that it had reviewed Mother’s evidence when it stated: “To [Mother’s] credit, she has done voluntarily many of the things I would have wanted her to do. She has promptly sought more regular therapy. She has undergone a psychological evaluation.” The court also found that “historically speaking, [Mother] has provided... good care for [the child].” Nevertheless, the court did not modify the July 13, 2009 order which awarded Father sole legal and physical custody.
In any event, on the merits, the family court did not abuse its discretion in awarding Father sole physical and legal custody. Because sole physical custody was awarded to Mother after the May 2009 trial, Father was required to show that “‘some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.’ [Citation.]” (In re Marriage of Burgess, supra, 13 Cal.4th at p. 38.) In concluding that Father had met his burden, the family court may rely upon the parents’ past conduct. (See In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1094 [“Clearly, the court must consider the past conduct of the parents in fashioning a custody order that serves the best interests of the children.”].)
Here, there was a significant change in circumstances -- specifically, Mother’s mental state -- that indicated a different arrangement would be in the best interest of the child. Although the family court had concluded in May 2009 that Mother was not suicidal or depressed, it is undisputed that in July 2009, Mother sent suicidal text messages and was held for observation under section 5150. Mother admits that she sent suicidal text messages to Father and that she was under a 5150 hold for 24 hours at a hospital. The family court also personally observed Mother having a mental breakdown in court on July 13, 2009. It is also undisputed that Mother demonstrated a continuing hostility toward Father and an implacable resistance to his having a relationship with the child, based upon Mother’s belief that he had raped her years earlier. At the July 13 hearing, the family court observed Mother screaming hysterically that the child should be placed in foster care, rather than with Father, because Father would harm the child.
Moreover, although Dr. Dishon subsequently opined in September 2009 that Mother was not suicidal, he also stated that Mother was aware that any future suicidal message would not be taken lightly. Nevertheless, in December 2009, it is undisputed that Mother sent Father a suicidal text message. She also bombarded Father with repeated messages characterizing him as a “psychopath” who deserved to “rot in hell.”
In addition, minor’s counsel recommended, based upon her investigation, that Father have sole physical and legal custody. (See Fam. Code, § 3151 [“The role of the child’s counsel is to gather evidence that bears on the best interests of the child, and present that admissible evidence to the court.... The counsel’s duties... include interviewing the child, reviewing the court files and all accessible relevant records available to both parties, and making any further investigations as the counsel considers necessary to ascertain evidence relevant to the custody or visitation hearings.”]) Substantial evidence thus supports the family court’s conclusion that awarding Father sole legal and physical custody advanced the best interest of the child. Accordingly, the family court did not abuse its discretion in changing the prior custody arrangement of May 2009.
B. Request for a New Judicial Officer
Finally, Mother requests that this court exercise its discretion to order that a different bench officer conduct any future proceedings based on Commissioner Ito’s alleged lack of judicial impartiality. Appellate discretion to disqualify, however, “should be exercised sparingly, and only if the interests of justice require it. [Citation.] The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial [citation], or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme. [Citation.]” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303.) Here, the interests of justice do not require disqualification of Commissioner Ito. First, the court’s order has been affirmed and no issue has been remanded for further proceedings. (Cf. Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575-576 [appellants who obtained a partial reversal on appeal of a superior court judgment may disqualify the original trial judge on remand]; Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, 864 [appellant may disqualify original trial judge where appellate court remands for “trial of a contested issue in which trial court discretion or fact determination is involved”].) Second, the record does not show that Commissioner Ito lacked judicial impartiality. As discussed previously, the interim and permanent orders awarding Father sole custody were supported by substantial evidence in the record. Accordingly, we decline to exercise our discretion to disqualify Commissioner Ito from any further proceedings involving the parties.
DISPOSITION
The judgment is affirmed. Costs are awarded to Respondent.
We concur: EPSTEIN, P. J., WILLHITE, J.