Modification: S.Y. v. Superior Court

S.Y.,

Petitioner,

v.

THE SUPERIOR COURT OF

SAN DIEGO COUNTY,

Respondent;

OMAR M.,

Real Party in Interest.

No. D073450

(San Diego County

Super. Ct. No. DS59250)

California Courts of Appeal

Fourth Appellate District

Division One

Filed December 19, 2018

THE COURT:

It is ordered that the opinion filed herein on November 21, 2018, be modified as follows:

1. On page 1, under counsel listing, name of counsel for Alison C. Puentes-Douglass is hereby corrected to read as follows:

Alison C. Puente-Douglass.

2. On page 5, the first sentence of the second full paragraph is deleted and replaced with the following sentence:

The trial court made an initial custody order and stated the reasons for its ruling at the close of trial.

3. On page 8, the first sentence of the first full paragraph under the heading Discussion is deleted and replaced with the following sentence:

At the end of the trial on custody, the court stated the reasons for its ruling and issued an interim order granting joint legal custody and de facto joint physical custody to S.Y. and Omar.

4. On page 12, the last paragraph beginning with the words "Section 3044, subdivision (b)" is deleted and replaced with a new paragraph. This modification includes a new footnote, footnote 5, added at the end of the citation to section 3011, subdivision (e)(1), which will require renumbering of all subsequent footnotes. The paragraph now reads as follows:

Section 3044, subdivision (b), sets forth seven factors that the court must consider when determining if the presumption was rebutted.¹ The factors must be considered, but they are not mandatory requirements for rebuttal of the presumption. "[A]lthough section 3044, subdivision (b) requires the court to consider the factors it lists, it does not require the court to find they all have been satisfied in order to find the presumption rebutted." (Jason P., supra, 9 Cal.App.5th at p. 1032, fn. 23.) In Jaime G. v. H.L. (2018) 25 Cal.App.5th 794 (Jaime G.), the appellate court concluded that the trial court had to discuss each of the seven factors in its statement of reasons to provide meaningful review. (Id. at p. 805.) We agree that the trial court must consider the statutory factors and provide a statement of reasons explaining the basis of its finding. (See § 3011, subd. (e)(1).)² We disagree with Jaime G. to the extent it states that each factor must be specifically stated in the statement of reasons. (See Jaime G., at pp. 805-807, 809.) Sometimes, as here, certain factors are not in play. The trial court need only provide sufficient reasons to permit meaningful appellate review. (In re Marriage of Williams (2001) 88 Cal.App.4th 808, 815 (Williams).) The trial court did so here.

5. On page 16, the last sentence of the second full paragraph beginning with the words "The court's decision" is deleted and replaced with the following sentence:

The court's ruling was grounded on the specific facts of this case, not on the general statutory preference for continuing contact.

6. On page 24, the first full sentence beginning with the words "The Jaime G. court" at the top of the page is deleted and replaced with the following sentence:

The Jaime G. court found that the trial court erred because its statement of reasons did not explain why it failed to impose this condition, thwarting meaningful appellate review.

7. On page 29, heading number 5 is deleted and replaced with the following:

The Trial Court's Order Was Adequate Because It Stated the Reasons Supporting its Ruling.

8. Also on page 29, the second full paragraph beginning with the words "S.Y. criticizes" is deleted and replaced with the following paragraph:

S.Y. criticizes the court's statement of reasons because the court did not discuss each statutory factor on the record. The statement of reasons was sufficient because it set forth the court's rationale with sufficient clarity to permit meaningful appellate review.

9. On page 30, the second to last sentence beginning with the words "We are able" is deleted and replaced with the following sentence:

We are able to meaningfully review the court's statement of reasons here.

10. On page 31, the first sentence of the first paragraph is deleted and replaced with the following sentence:

This trial court's statement of reasons is sufficient for meaningful review, particularly in light of the evidence at trial and the extensive information submitted to the court.

The petition for rehearing is denied.

There is no change in judgment.

BENKE, Acting P. J.

^1. Section 3044, subdivision (b) states:

"In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:

"(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. [¶] In determining the best interest of the child, the preference for frequent and continuing contact with both parents, . . . or with the noncustodial parent, . . . may not be used to rebut the presumption, in whole or in part.

"(2) Whether the perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.

"(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.

"(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.

"(5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.

"(6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.

"(7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence."

^2. "Where allegations about a parent pursuant to subdivision (b) [concerning abuse by one parent against another] . . . have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that [allegedly abusive] parent, the court shall state its reasons in writing or on the record . . . ." (§ 3011, subd. (e)(1), emphasis added.)