Filed 12/4/14 B.J. v. C.F. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



B.J.,

         Plaintiff and Respondent,                                       E058760

v.                                                                       (Super.Ct.No. IND1201412)

C.F.,                                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Gregory J. Olson,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

         C.F., in pro. per., for Defendant and Appellant.

         No Appearance for Plaintiff and Respondent.

         Defendant and appellant C.F. (father) and plaintiff and respondent B.J. (mother)

are the parents of P. (born in 2005) and A. (born in 2006). Since 2008, father has been

incarcerated. On August 3, 2012, mother petitioned the court to establish the parental

relationship between the children and father, to obtain sole legal and physical custody of

the children, and to deny visitation with father. On January 30, 2013, father filed his own
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petition regarding child custody and visitation. The trial court granted mother’s petition

on March 11, 2013, and denied father’s on April 11, 2013. Father appeals from both

orders.

                      I. PROCEDURAL BACKGROUND AND FACTS

          In April 2008, mother obtained a restraining order against father, along with a no-

visitation order. That same year, father was incarcerated for committing a Penal Code

section 288a offense involving mother’s daughter. Nonetheless, mother periodically

allowed the children to visit their father.

          On August 3, 2012, mother petitioned the court to establish paternity and to

modify child custody and visitation. On November 19, 2012, a hearing was held, and

mother informed the court that father was incarcerated and had attempted to file an

objection to the petition. Sole legal and physical custody was temporarily awarded to

mother, with no visitation for father; however, the court ordered both parents “to attend

Child Custody Recommending Counseling” (mediation) on January 4, 2013. The

mediation was not held due to father’s nonappearance, and on January 18, 2013, the court

again ordered both parents to attend mediation, with father authorized to appear

telephonically.

          On January 30, 2013, father filed his petition for modification of child custody and

visitation. He was incarcerated and requested two monitored telephone calls per month.

On February 7, 2013, the case was assigned to child custody recommending counselor,

Marlo Guzman, who held the mediation on February 15, 2013.



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       Mother’s petition was heard on March 11, 2013. The court found father to be the

natural father of the children, granted mother sole legal and physical custody, and denied

father’s oral motion for supervised telephonic contact. On April 11, 2013, the trial court

denied father’s petition for modification of child custody and visitation.

                                      II. DISCUSSION

       A. The Trial Court Did Not Abuse Its Discretion or Violate Father’s Due

Process Rights When It Denied Him Custody and Visitation.

       In two separate, but similar, arguments, father challenges the trial court’s decision

to grant custody to mother and deny him visitation. Because these arguments are closely

related, we combine them into one discussion.

              1. Standard of Review.

       The standard of appellate review of a custody and visitation order is deferential

abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Under this

test, we must uphold the trial court’s ruling if it is correct on any basis, regardless of

whether such basis was actually invoked. (Ibid.) The trial court, having heard the

evidence and having observed the demeanor, attitude, and veracity of the witnesses, is

best qualified to determine the factual issues presented at trial. (In re Marriage of Lewin

(1986) 186 Cal.App.3d 1482, 1492.)

              2. Contentions and Analysis.

       In challenging the trial court’s custody and visitation order, father primarily

focuses on Ms. Guzman’s recommendation. First, he complains that she failed to

interview him separately from mother prior to mediation. Next, he complains that he was

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not allowed the opportunity to fill out the mandatory parent orientation questionnaire.

Further, he contends the recommendation was inaccurate as to the date of his last contact

with the children.

       Despite father’s claim, there is nothing in the record before this court that suggests

any nefarious reason why the parents were not interviewed separately or for father being

denied the opportunity to fill out the questionnaire. As for any inaccuracy regarding his

last visitation with the children, father informed the court of the correct date during the

hearing. More importantly, at both the trial level and on appeal, father has not offered

any evidence of specific information he possessed which might have been revealed in an

interview or questionnaire that would have supported a different recommendation from

Ms. Guzman.

       Next, father claims that he was prejudiced at the mediation because mother

accused him of lying, and when he expressed his belief that Ms. Guzman was biased in

favor of mother, Ms. Guzman terminated the session. Father faults Ms. Guzman for (1)

failing to reduce the acrimony between the parties; (2) failing to develop an agreement

which would have allowed the children to continue close contact with father; (3) failing

to effect a settlement on a visitation plan that was in the best interests of the children; and

(4) failing to comply with Family Code sections 3161 and 3162. Father objected to Ms.

Guzman’s recommendation; however, the court impliedly overruled his objection.

       Finally, father argues that the fact that a stepfather abused his stepdaughter is

insufficient to show that his sons would be at risk of sexual abuse, and thus, a “blanket no

contact order was an abuse of discretion.” Although father does not accuse the trial court

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of relying on his criminal background, he acknowledges that he was accused of, and pled

guilty to, lewd and lascivious conduct on a minor. He notes that mother’s daughter made

the accusation, that there was no finding of penetration or force, and that he was highly

intoxicated when arrested. Father assumes the trial court relied on his criminal

background in making its decision.

       With Ms. Guzman’s alleged faulty recommendation and father’s criminal

background in mind, father contends the trial court abused its discretion in making its

custody/visitation determination. However, he offers no support for his argument.

Rather, father cites to case law which has no application to the facts of his case. “An

appellant must provide an argument and legal authority to support his contentions. This

burden requires more than a mere assertion that the judgment is wrong. . . . It is not our

place to construct theories or arguments to undermine the judgment and defeat the

presumption of correctness. When an appellant fails to raise a point, or asserts it but fails

to support it with reasoned argument and citations to authority, we treat the point as

waived. [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,

852, fn. omitted.)

       Even if we consider the merits of the issue, we conclude the trial court’s decision

is supported by the evidence (Ms. Guzman’s recommendation and the testimony of both

parents) and not beyond the bounds of reason. (In re Marriage of Loyd (2003) 106

Cal.App.4th 754, 759.) In making its decision, the trial court observed, “Apparently,

there was a problem when you did have contact [with the children] in 2011. Based on

that, I’m not going to order phone call communication at this time. Obviously, when you

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get out of prison, you can come back to court, show the [c]ourt that things have changed,

what you’ve done, and we can look at it again, but I’m going to follow the

recommendation at this time.”

       B. Father Was Not Denied Any Due Process Right to Counsel

       According to father, the trial court’s denial of his request for appointment of

counsel violated his due process rights. However, in support of this claim, father cites to

case law solely concerning a parent’s right to counsel in dependency cases. This is not a

dependency case; rather, this is a family law case. Father has not cited to, nor are we

aware of, any legal authority that grants parents a due process right to counsel in a family

law action involving custody and visitation issues. Absent such authority, the trial court

correctly denied father’s request.

       C. The Record Is Inadequate to Show the Court Imposed Court Fees After

Waiving Them

       Father contends the trial court erred in imposing court fees after it granted a fee

waiver to him. Father has the burden of overcoming the presumption of correctness. In

order to do so, he must provide the court with an adequate record that demonstrates what

the trial court did and the alleged error. His failure to provide an adequate record on a

particular issue requires that the issue be resolved against him. (Maria P. v. Riles (1987)

43 Cal.3d 1281, 1295.) Here, the record is insufficient to show that father was charged

and paid court fees after the court granted his request for waiver.




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       D. The Trial Court Did Not Violate Father’s Due Process Rights by Failing

to Order a Court Evaluator.

       Father challenges the denial of a child custody evaluation on July 1, 2013, while

this case was pending on appeal. However, the denial was made after the orders that

father appeals from, and thus are outside the scope of our review.

                                      III. DISPOSITION

       The orders are affirmed. The parties shall each bear their own costs on appeal.1

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                                          J.
We concur:


       RAMIREZ
                               P.J.

       RICHLI
                                 J.




       1  Although mother has prevailed on the merits in this appeal, she did so despite
failing to file a respondent’s brief. We decline, therefore, to award her costs. (California
Rules of Court, rule 8.278, subd. (a)(5).)

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