Filed 8/21/20 S.T. v. D.B. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                       SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT

 S.T.,                                                           B294472

          Plaintiff and Respondent,                              (Los Angeles County
                                                                 Super. Ct. No. YF005928)
          v.

 D.B.,

          Defendant and Appellant.




     APPEAL from orders of the Superior Court of Los Angeles
County, Angela Villegas, Commissioner. Affirmed.

     Law Offices of Herb Fox and Herb Fox for Defendant and
Appellant.

         No appearance for Plaintiff and Respondent.
                      ______________________
       Father challenges the trial court’s order extending Father’s
child support for his incapacitated Daughter beyond her 18th
birthday. He argues the trial court improperly relied on personal
knowledge of purported facts outside the record, applied an
incorrect legal standard to determine Daughter was
incapacitated from earning a living, and erroneously failed to
determine his ability to pay. We affirm.
                                  I
       We summarize the facts leading to the trial court’s order.
                                  A
       Daughter is 20 years old. In August 2014, when Daughter
was 14 years old, Mother and Father entered into a stipulation
regarding child custody and child support. The stipulation stated
Father would pay Mother $250 per month in child support. The
amount reflected the fact that Father was on permanent
disability and Mother received about $497 each month in
Supplemental Security Income due to Father’s disability. Mother
and Father had joint legal custody, and agreed Mother had
primary physical custody and Father had visitation rights. In
April 2015, the trial court incorporated the stipulation into a
judgment of parentage.
       In March 2018, a month before Daughter turned 18, the
Los Angeles County Child Support Services Department asked
the trial court to determine whether Daughter was “incapacitated
from earning a living and without sufficient means” under
Family Code section 3910, subdivision (a), and if so, to order
Father to continue paying child support until Daughter was no
longer incapacitated. In a motion filed at Mother’s request, the
County stated Daughter was “diagnosed with attention deficit
hyperactivity disorder, emotional disturbance, and other related




                                2
learning/developmental disabilities.” Daughter also received
special education services under an Individualized Education
Program.
      The County attached five exhibits to this motion to extend
support for an adult incapacitated child. The first exhibit was
the April 2015 judgment incorporating Father and Mother’s
stipulation regarding child custody and child support.
      The County next attached the first pages of four
documents: Daughter’s 2015 Individualized Education Program
evaluation, Daughter’s 2016 Individualized Education Program
evaluation, a 2017 speech and language report, and a 2017
psycho-educational report. In a declaration, the County’s
attorney explained the full documents contained confidential
information and likely should not be part of the court file, but the
County would “lodge complete copies with the court before the
hearing and have them available for the court’s in-camera review
on the hearing date.”
      The first page of the 2015 Individualized Education
Program evaluation stated Daughter’s primary disability was
emotional disturbance. According to the evaluation, Daughter
had difficulty building and maintaining relationships, acted
inappropriately, and acted unexpectedly in social situations.
Daughter also regularly exhibited signs of unhappiness or
depression. These conditions impaired her ability to focus on
schoolwork, which affected “her ability to make adequate
progress within the general education curriculum without
additional support.” Daughter was also eligible for the
Individualized Education Program “under a secondary condition
of other health impairment due to [attention deficit hyperactivity
disorder].”




                                 3
      The first page of the 2016 Individualized Education
Program evaluation identified Daughter’s primary disability as
emotional disturbance, and her secondary disability as “Other
Health Impairment.”
      The first pages of the 2017 speech and language report and
the 2017 psycho-educational report also noted Daughter’s
emotional disturbance and attention deficit hyperactivity
disorder diagnoses.
      As the third exhibit, the County attached to the motion two
February 8, 2018 letters from the Social Security Administration
stating Daughter received $517 each month in Social Security
benefits and $318.15 each month in Supplemental Security
Income. Another letter dated January 2, 2018, identified
Daughter’s attention deficit hyperactivity disorders as the
medical basis for these benefits.
      As the fourth exhibit, the County attached a January 22,
2018 letter stating Daughter’s diagnoses were attention deficit
hyperactivity disorder, borderline intellectual functioning,
learning/developmental disability, and a repaired atrial septal
defect.
      Finally, the County attached Mother’s completed and
signed January 5, 2018 Income and Expense Declaration.
      The County redacted Mother’s address, phone number, and
email address from these documents.
      As far as the record shows, Father did not file an
opposition.
                                  B
      We turn to the December 7, 2018 evidentiary hearing.
Mother and Father represented themselves. The County’s
counsel appeared for the County.




                                4
       The County informed the trial court the Social Security
Administration was reviewing whether Daughter was still
eligible for Supplemental Security Income now that she was 18
years old. The County also described to the trial court the
documents attached to its motion to extend support for an adult
incapacitated child. The County presented other documents
including complete versions of Daughter’s Individualized
Education Program evaluations and medical reports, the first
pages of which the County filed with the motion. The County
also provided one of Father’s workers’ compensation pay stubs
dated October 15, 2018, and a letter Father wrote to Mother
dated June 18, 2015.
       Father moved for a continuance, stating his surprise and
confusion as to why case documents described Daughter as
“incapacitated.” The court denied this request and explained the
purpose of the hearing was to determine whether Daughter was
“incapacitated from earning a living,” which was “a different kind
of incapacitated” from the type requiring a conservator. The trial
court stated it was looking at whether Daughter “is suffering
from something that prevents [her] from fully becoming
independent and taking care of herself” and added “it could be a
temporary thing, or it could be a permanent thing.” The trial
court would decide whether Daughter needed “a little extra
support going forward.”
       The trial court then asked if there were any objections to
the court reviewing in camera the documents the County
provided. Mother and Father had no objections. Father reviewed
the same documents.
       Next, the trial court asked Mother why she believed
Daughter was incapacitated. Mother stated Daughter had




                                5
struggled since elementary school and faced new struggles after
turning 18 as they tried “to get her out there and interact in the
world.” Daughter had breakdowns and suffered from anxiety.
She suffered from post-traumatic stress disorder after being
kidnapped about two years earlier. She attended therapy to
address these issues. Daughter previously attended a school for
students with learning disabilities, but Mother homeschooled her
for the last two years of high school because it was difficult for
her to be in a regular school setting. Daughter earned her
diploma after Mother petitioned to the state to allow Daughter to
graduate with the state’s minimum requirements instead of
“regular high school requirements.” Daughter enrolled in college
but had to withdraw. Mother took her to horse therapy to “keep
her going and show you’re doing something.” But according to
Mother, Daughter was “not capable of getting out there and
getting a job and just doing it.”
       Mother said a regional center recently approved Daughter
for special day classes to teach her life skills. The trial court
responded: “I have some familiarity with the regional center
system from my prior employment. I didn’t work for a regional
center, but I used to work as an administrative law judge, and I
heard cases that involved the regional center. So I’m familiar
with what the regional center requires in terms of being qualified
to get their services, and I’m also familiar with some of the
services that they provide.”
       Mother explained Daughter would attend social skills
classes at the regional center two or three times a week, to
prepare her “to be able to go out there and work at some point.”
The center also would provide therapy and counseling.




                                6
       The trial court also asked: “What are the regional center’s
goals to accomplish this year? Because they always have a goal
or a set of goals. So what are the goals for this year?” Mother
said developing social skills was a primary goal, and confirmed
the classes would teach “basic functional things to help prepare
her for more sophisticated interaction with the world.”
       The trial court noted Daughter’s attention deficit
hyperactivity disorder and emotional disturbance diagnoses
usually would not qualify Daughter for regional center services.
The court and Mother discussed Daughter’s borderline
intellectual functioning and atrial septal defect diagnoses, and
Mother believed the atrial septal defect—for which Daughter had
triple bypass surgery when she was two years old—contributed to
Daughter’s struggles.
       Mother also told the trial court it could take her three to
four hours to deescalate Daughter’s anxiety. Three months
before the hearing, Daughter jumped out of the car into traffic.
Mother called Father for help, and eventually called the police.
Mother brought Daughter to a hospital, and the staff there “was
able to calm her and speak with her.”
       Mother hoped Daughter could be self-sufficient at some
point. It was difficult “just getting her to do functions around the
house” or make it out of the house.
       The trial court addressed Father, and stated: “We certainly
have some diagnoses that we’re aware of here. And as you can
see from the conversation that we had, I have some awareness of
what a regional center would be looking at in terms of how
functional a person is, and they typically don’t provide services if
the person is capable of functioning. Usually the regional center
has to be able to determine that the person has a substantial




                                 7
impairment in their life before they will extend services, so we
can all just kind of be aware of that.” The court asked for
Father’s perspective.
       Father said he understood where Mother was coming from,
but Daughter “knows what she can get away with her mom and
she knows what she can get away with her dad.” He appreciated
all Mother’s efforts but did not “understand why this is
happening.” Father said “[Daughter will] do one thing with me,
and then she’ll do another thing with [Mother]. And I
understand [Mother] overextending herself and doing this and
going to horse therapy and all this type of stuff. But I know my
daughter, and my daughter will perform as an adult.” He told
the court Daughter was not incapacitated “[f]rom earning a living
or anything.”
       Mother told the trial court Daughter had spent “[z]ero”
time with Father over the last two years, but Mother would call
Father when she did not know where to turn.
       Mother pulled up the regional center report on her phone
and offered to show it to the trial court to “clarify what
[Daughter’s] diagnosis was.” The trial court said it did not need
to see the report as long as it was consistent with the other
documents, but suggested Mother show it to Father. The court
said, “If you want [ ] the court to look at that, if you think it’s
necessary for me to see it, you would need to share with [Father]
first. If you don’t think that you want the court to look at it, then
I don’t have to. I already have knowledge of what the regional
center’s criteria would be.” Mother decided not to show the
report.
       After further discussion, the trial court found Daughter
“may be a person who needs a little bit more time to get up to




                                  8
being capacitated to earn a living.” The court did not “think the
regional center would have become involved if [Daughter] were
able at this point to take care of herself” and granted the
extension of child support. The court did not think the extension
would be permanent and ordered the parties to return in August
2019 for a status review hearing to assess Daughter’s progress.
       The trial court also stated: “We don’t have the issue of the
amount of child support before the court, so that can’t change
right now. But the court can grant the extension, and I can grant
the request to come back on a later court date as [Father] had
asked for. We’re just going to leave things as they are for [the]
time being.” Father told the court he could not pay the $250 each
month. He said he was on disability and had nothing in his bank
account. The trial court again said the child support amount
issue was not before the court, and said Father could file a
motion asking the court to review it. Father repeated he could
not afford to pay $250 each month in child support, and stated he
could try to give $125 each month. The trial court reiterated it
could not address the issue at this hearing but Father could file
papers with the court and contest the amount. The court ordered
the County to prepare a written order.
                                    C
       Father filed a notice of appeal on December 13, 2018. The
trial court announced its intended ruling at the December 7, 2018
hearing but did not enter the written order until January 14,
2019, so Father’s notice of appeal was premature. (See Cal. Rules
of Court, rule 8.104(c)(2).) Nonetheless, we treat the notice of
appeal as timely filed immediately after the trial court entered its
January 14, 2019 order. (Cal. Rules of Court, rules 8.104(d)(2) &
(e); see Castillo v. Glenair, Inc. (2018) 23 Cal.App.5th 262, 275.)




                                 9
                                   II
        We review a trial court’s decision to grant adult child
support for abuse of discretion. (In re Marriage of Drake (2015)
241 Cal.App.4th 934, 939.)
                                   A
        The County brought its motion to extend child support for
Daughter under Family Code section 3910, subdivision (a), which
states: “The father and mother have an equal responsibility to
maintain, to the extent of their ability, a child of whatever age
who is incapacitated from earning a living and without sufficient
means.”
        Father first argues the trial court improperly “relied on
inadmissible personal knowledge of purported facts to fill in the
evidentiary gaps created by the lack of competent evidence of
[Daughter’s] actual ability to be employed.” Specifically, Father
argues the trial court “relied on and cited to personal knowledge
of procedures and standards by the Regional Centers in order to
find that [Daughter] was, in fact, incapacitated to earn a living.”
        Father forfeited this argument by failing to raise it in the
trial court. (DiCola v. White Brothers Performance Products, Inc.
(2008) 158 Cal.App.4th 666, 676.) We do not consider arguments
or theories raised for the first time on appeal, including those
alleging deficiencies in the opposing party’s evidence. They must
be raised in the trial court. (Ibid.) Father’s status as a self-
represented litigant does not relieve him of this obligation. (See
Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Father did
not object when the trial court referenced its knowledge of
regional center procedures, and cannot raise the issue for the
first time on appeal.




                                 10
       Further, the trial court’s reference to regional center
procedures did not prejudice Father. Father incorrectly claims
the trial court relied on personal knowledge of regional center
procedures “to fill in the evidentiary gaps” to find Daughter
incapacitated. Evidence already was ample. Documents showed
Daughter received special education services under an
Individualized Education Program and had attention deficit
hyperactivity disorder, borderline intellectual functioning, and
learning/developmental disability diagnoses. Mother testified
Daughter had breakdowns, suffered from anxiety, and suffered
from post-traumatic stress disorder after being kidnapped about
two years earlier. Mother homeschooled Daughter because
Daughter struggled in a regular school setting. Daughter had to
withdraw from college. It was difficult “just getting her to do
functions around the house” or make it out of the house. It could
take Mother three to four hours to deescalate Daughter’s anxiety.
Three months before the hearing, Daughter jumped out of the car
into traffic. She did not calm down until Mother took her to a
hospital.
       Mother testified she lived with Daughter “day to day” and
Father spent “[z]ero” time with Daughter over the last two years.
After hearing testimony from Mother and Father, the trial court
decided to accept Mother’s testimony that Daughter was “not
capable of getting out there and getting a job and just doing it.”
The court’s reference to regional center procedures was
peripheral.
       Father’s argument that the trial court improperly relied on
and referenced “personal knowledge of procedures and standards
by the Regional Centers” thus errs.




                               11
                                   B
       Father next contends the trial court applied the wrong
standard to determine Daughter’s incapacity to earn a living.
This contention is unsound.
       Father claims the trial court’s standard to determine
Daughter’s incapacity was whether Daughter needed “a little
extra support” or “a little more time” to earn a living. He argues
this “loose and vague standard could make parents obligated to
continue to support adult children who are underachievers or for
other [reasons] are unwilling to accept an entry level or minimum
wage job.” To the contrary, the trial court explained to Father
that whether Daughter was “incapacitated from earning a living”
meant whether she was “suffering from something that prevents
[her] from fully becoming independent and taking care of herself.”
This is the correct standard under California case law. (See In re
Marriage of Drake, supra, 241 Cal.App.4th at p. 940
[incapacitated from earning a living means “ ‘an inability to be
self-supporting because of a mental or physical disability or proof
of inability to find work because of factors beyond the child’s
control.’ ”].) Using this standard, the court found Daughter could
not take care of herself and could not earn a living on her own.
       Father argues the primary purpose of Family Code section
3910, subdivision (a) “is to help assure that the child does not
become a public ward” and implies the standard involves whether
Daughter can “hold any kind of gainful employment.” The trial
court found Daughter lacked the capacity to earn a living
precisely because she could not take care of herself or hold any
kind of gainful employment.
       The trial court used the phrases “a little bit more time” and
“a little extra support” to describe what Daughter needed as




                                12
someone who lacked capacity to earn a living, not to determine
whether Daughter was incapacitated in the first place. Because
the trial court did not think Daughter’s incapacity was
permanent, it explained Daughter might gain the capacity to
earn a living with “a little bit more time.” With continued
support from her parents, Daughter had “a lot of potential” to
become self-sufficient. There was no error here.
       Father also argues “there was no testimony by a
psychological or vocational expert establishing [Daughter’s]
actual condition and her inability to work” but cites no authority
requiring expert testimony on this point.
       The trial court applied the correct standard to determine
Daughter’s incapacity to earn a living.
                                   C
       Finally, Father argues we must reverse because the trial
court did not determine whether Father could pay the $250 per
month and did not set an amount according to a mandatory
guideline formula.
       Father claims Family Code section 3910, subdivision (a)
“requires, on its face, that the trial court make a finding not only
that the adult child is incapacitated but also that the parents
have the ability to pay post-majority support.” This argument is
mistaken. Under the statute, “father and mother have an equal
responsibility to maintain, to the extent of their ability, a child of
whatever age who is incapacitated from earning a living and
without sufficient means.” (Fam. Code, § 3910, subd. (a).) The
phrase “to the extent of their ability” refers to the extent of the
parents’ duty under the statute, not the existence of that duty.
(Bryant v. Swoap (1975) 48 Cal.App.3d 431, 438 [defining “to the
extent of their ability” in former Civil Code section 206, repealed




                                  13
and reenacted as Family Code section 3910, subdivision (a)
without substantive change].) The phrase has no bearing on
whether the obligation arises in the first place, but rather
describes what the parents must do to fulfill that obligation.
(Ibid.) As a matter of law, it makes no sense to say this duty
appears and disappears depending on the parents’ assets. (Ibid.)
       The only issue the trial court decided was whether Father’s
duty to continue supporting Daughter existed. At the hearing,
the County’s counsel explained there was no pending motion to
modify the child support amount, “[s]o the only issue that
remains is the extension of support.” The County’s motion
requested the court extend Father’s “duty to pay support” if the
court determined Daughter was incapacitated from earning a
living. As the trial court correctly noted, “We don’t have the issue
of the amount of child support before the court, so that can’t
change right now.”
       Father objected many times and told the trial court he
could not pay the $250 each month. The trial court reiterated it
could not address the issue at this hearing but Father could file a
motion to contest the amount at any point before the next
hearing. Counsel for the County told the court Father was
welcome to file for relief, but his April 30, 2018 income and
expense declaration “would seem to indicate that he could afford
the [$250].” Father did not file an opposition to the County’s
motion to extend child support, and did not file any other
documents to contradict what his April 30, 2018 income and
expense declaration apparently stated.
       Father cites three cases in arguing Family Code section
3910, subdivision (a) required the trial court to set the child
support amount according to the guidelines in Family Code




                                14
sections 4052–4055: In re Marriage of Drake (1997) 53
Cal.App.4th 1139, 1156–1157; In re Marriage of Sorge (2012) 202
Cal.App.4th 626, 640–641; and In re Marriage of Hall (2000) 81
Cal.App.4th 313, 316–317. However, the trial courts in all three
cases decided a motion to modify a child support order, rather
than simply to extend the order. (Drake, at p. 1148; Sorge, at p.
634; Hall, at p. 315.) There was no pending motion to modify
child support here. The trial court thus could not change the
child support amount using statutory guidelines or other means.
There was no abuse of discretion.
                         DISPOSITION
       We affirm. We award costs on appeal, if any, to Mother.



                                               WILEY, J.



WE CONCUR:



           BIGELOW, P. J.




           GRIMES, J.




                               15
