California Court of Appeal Feb 5, 2014 No. D063732Unpublished
Filed 2/5/14 C.R. v. R.F. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
C.R., D063732
Respondent,
v. (Super. Ct. No. DS46436)
R.F.,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Roderick W.
Shelton, Judge. Affirmed.
R.F., in pro. per., for Appellant, R.F.
C.R., in pro. per., for Respondent, C.R.
I.
INTRODUCTION
R.F., appearing in propria persona, appeals from a final order of the trial court
awarding sole legal and primary physical custody of his son E.F to the child's mother,
respondent C.R.1 The court's order grants R.F. supervised visits with E.F. on alternating
Sunday afternoons, and orders him to participate in conjoint therapy with the child.
R.F. asserts that in granting C.R. sole legal and primary physical custody, the trial
court erred in rejecting R.F.'s contention that C.R. purposely harmed E.F. when the child
fell off of a bed one night when he was approximately four months old.
We conclude that R.F. has failed to demonstrate that there is insufficient evidence
to support the trial court's factual determinations, or that the trial court otherwise erred or
abused its discretion with respect to its custody order. We therefore affirm the trial
court's order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The record on appeal is extremely limited. As a result, the factual and procedural
background will necessarily be brief.
E.F. was born on February 3, 2011. When E.F. was approximately eight months
old, C.R., appearing in propia persona in the trial court, filed a petition to establish a
parental relationship between R.F. and E.F., and for orders regarding custody and
visitation.
It appears that the trial court entered a temporary custody and visitation schedule
at some point, because the record contains evidence that R.F. had approximately five
1 C.R. did not file a responsive brief in this appeal.
2
supervised visits with E.F. between March 2012 and August 1, 2012, the date on which
the first of multiple hearings regarding permanent custody and visitation occurred.
The court held a hearing on August 1, 2012, at which time the court permitted
each of the parties to testify, and allowed them to ask questions of each other. At that
hearing, the trial court appointed counsel for E.F. and continued the hearing for a week to
allow the child's attorney to meet with each of the parties and discuss the matter with the
court. Although the record does not contain a transcript of the August 7 proceedings, it
appears that on that date the court again continued the hearing, to August 28, 2012. On
August 28, the court heard from the attorney appointed to represent E.F. E.F.'s attorney
informed the court that she had concerns about granting R.F. unsupervised visits with
E.F., at least until R.F. underwent a full psychological evaluation. The trial court heard
from both parties again, as well. At the conclusion of the hearing, the court ordered both
R.F. and C.R. to undergo psychological examinations and continued the hearing to a date
in December 2012. The record does not contain a transcript or minute order arising out
of the December 2012 hearing.
The record does contain a copy of a minute order pertaining to a March 19, 2013
hearing.2 In that order, the trial court marked a box indicating that the court was
awarding C.R. "sole legal" custody of E.F., and marked another box indicating that it was
also awarding C.R. "primary" physical custody of E.F. The minute order further
indicates that the trial court denied R.F.'s request for unsupervised visitation with E.F.,
2 The record does not contain a transcript of this proceeding. 3
but granted R.F. supervised visits on alternating Sundays between 1:00 p.m. and 6:00
p.m. The court also ordered "conjoint therapy" to occur, presumably for R.F. and E.F.3
R.F. filed a timely notice of appeal from the trial court's March 19, 2013 order.
III.
DISCUSSION
R.F. takes issue with the trial court's decision to award C.R. sole legal and primary
physical custody of E.F. He contends that "some crucial factors that have already been
discussed above [in his appellate brief] were overlooked during the judgment,"
apparently referring to an incident in which E.F. fell off of a bed and hit his head while he
was in the bedroom with C.R., when he was approximately four months old. R.F.'s
argument appears to be that the trial court erred in rejecting R.F.'s contention that C.R.
purposely harmed the child during that incident. He suggests that C.R. was being
dishonest when she described the event to the trial court, and contends that the trial court
should not have awarded C.R. sole legal and primary physical custody of E.F. because
this incident establishes that she purposely harmed the child, and therefore, is guilty of
child abuse.
In making this argument, R.F. essentially attempts to reargue on appeal the facts
concerning what happened on the evening of the incident. However, "our role as an
appellate court is not to make different findings of facts or second-guess the trier of fact,"
3 The court's minute order does not specify the parties to which the "conjoint therapy" order is to apply. However, the order also refers to the therapist deciding the "number of visits and whether or not the half sister can attend," indicating that the court was referring to conjoint therapy between R.F. and E.F. 4
which in this case was the trial court. (In re Michael D. (2002) 100 Cal.App.4th 115,
126.) "We only determine whether there is substantial evidence supporting the
conclusion of the trier of fact." (Id. at pp. 126-127.) The evidence in this case
demonstrates that C.R. has had primary physical custody of E.F. since his birth, and the
record is devoid of any evidence that she has engaged in physical or emotional abuse of
the child during that time.
With respect to the specific incident to which R.F. refers in his briefing—i.e., the
child's falling off of a bed one night when he was approximately four months old—the
trial court heard R.F.'s arguments and evidence, and also heard from C.R. regarding that
event. The trial court was free to find C.R.'s version of what occurred to be credible,
including her denial that she purposely pushed her son off of the bed. Again, it is not the
place of an appellate court to weigh the credibility of witnesses or to make new factual
determinations. (See People v. Lashley (1991) 1 Cal.App.4th 938, 946.) "[I]t would
distort the process if this court, reading a 'cold' record, substituted its judgment for that of
the trier of fact who saw and heard the live witnesses. Our role is to determine the legal
sufficiency of the found facts and not to second guess the reasoning or wisdom of the fact
finder." (Ibid.)
We conclude that the record provides ample evidence to support the trial court's
factual conclusions with respect to its custody determination.
R.F. has identified no legal error or abuse of discretion that would justify reversing
the trial court's custody order. (See City and County of San Francisco v. Funches (1999)
75 Cal.App.4th 243, 244-245 [appellant bears burden of affirmatively showing
5
prejudicial error]). " 'We therefore heed "the well admonished rule of appellate review
which finds a presumption that the court performed its duties in a regular and correct
manner absent a clear showing to the contrary." [Citation.]' " (In re Marriage of Smith
(1990) 225 Cal.App.3d 469, 494 .)
IV.
DISPOSITION
The March 19, 2013 order of the trial court is affirmed.
AARON, J.
WE CONCUR:
O'ROURKE, Acting P. J.
IRION, J.
6
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's order granting the mother sole legal and primary physical custody of the child, finding that the appellant failed to demonstrate insufficient evidence or an abuse of discretion.
Issues
Whether the trial court erred in its custody determination by rejecting the appellant's claim that the respondent purposely harmed the child.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude that R.F. has failed to demonstrate that there is insufficient evidence to support the trial court's factual determinations, or that the trial court otherwise erred or abused its discretion with respect to its custody order.”
“Our role as an appellate court is not to make different findings of facts or second-guess the trier of fact”
“The trial court was free to find C.R.'s version of what occurred to be credible, including her denial that she purposely pushed her son off of the bed.”