Opinion
D082485
09-26-2024
A.F., a Minor, etc., Plaintiff and Appellant, v. JEFFREY F., Defendant and Respondent.
Law Office of Beatrice L. Snider, John L. Romaker, Alexandria M. Jones for Plaintiff and Appellant. Palmer Rodak &Associates, Layla Zad; Niddrie, Addams, Fuller, Singh, and Victoria E. Fuller for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 21FDV01528N Pamela M. Parker, Judge. Affirmed.
Law Office of Beatrice L. Snider, John L. Romaker, Alexandria M. Jones for Plaintiff and Appellant.
Palmer Rodak &Associates, Layla Zad; Niddrie, Addams, Fuller, Singh, and Victoria E. Fuller for Defendant and Respondent.
HUFFMAN, Acting P. J.
A.F. appeals the denial of her application for a domestic violence restraining order (DVRO) against her father, Jeffrey F. (Father). She contends the court arbitrarily disregarded the treating provider's post-traumatic stress disorder (PTSD) diagnosis based on improper and unsubstantiated criteria, misconstrued the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) in determining whether Father's "striking" and "battering" of A.F. constituted abuse, misinterpreted the DVPA's standard for disturbing one's peace, and improperly applied the parental discipline defense to the DVPA. We disagree and conclude the trial court did not abuse its discretion in denying the DVRO application. Accordingly, we affirm.
Statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
I. Procedural Background
Father and A.F.'s mother, Andrea F. (Mother) married in 2008. They separated when A.F. was three years old. Less than a year later, Father pleaded guilty to one count of misdemeanor domestic violence against Mother and subsequently completed 52 weeks of counseling. The parents finalized all reserved issues related to their divorce in 2015 and agreed to share legal custody, with A.F. primarily residing with Mother and visiting Father on weekends, holidays, and vacations.
In April 2021, when A.F. was 11 years old, she applied for a DVRO through Mother, who had been appointed her guardian ad litem (GAL). The court entered a temporary restraining order pending trial, which resulted in a no contact order remaining in place for nearly two years.
This is A.F.'s third appeal in this matter. Early in the proceedings, Father objected to Mother's appointment as GAL and to Edward Castro's representation of A.F., arguing Castro had a conflict of interest because he previously had represented Mother in her marital dissolution from Father. (A.F. v. Jeffrey F. (2022) 79 Cal.App.5th 737, 742.) A different judge removed Mother as GAL and granted Father's request to disqualify Castro. (Ibid.) A.F. appealed the order disqualifying her attorney, and we reversed. (Ibid.)
While that appeal was pending, another family court judge, who was presiding over the parents' dissolution case, anticipated changes to the custody and visitation arrangement following resolution of the domestic violence matter and, therefore, appointed a "minor's counsel" to represent A.F.'s best interests in that court. (A.F. v. Jeffrey F. (2023) 90 Cal.App.5th 671, 676 (A.F. II).) Meanwhile, A.F. retained a new attorney, Aaron Smith, in the domestic violence matter. (Ibid.)
A judge subsequently reviewed and rejected the fee agreement between A.F. and Smith, determined A.F. was not competent to retain counsel independently, and found that Smith did not meet the requirements detailed by the California Rules of Court, rule 5.242 to serve as a "minor's counsel." (A.F. II, supra, 90 Cal.App.5th at p. 676 .) That court therefore removed Smith as A.F.'s attorney, appointed a "minor's counsel" in the domestic violence case, and prohibited Smith from replacing the attorney the court had appointed as a "minor's counsel." (Ibid.) A.F. appealed on multiple grounds. (A.F. II, supra, 90 Cal.App.5th at pp. 676-677.) We affirmed the order voiding the agreement between A.F. and Smith and removing Smith as her attorney; reversed the order appointing a "minor's counsel," finding it improper in a domestic violence matter; and reversed the order prohibiting Smith from serving as A.F.'s attorney in the future. (Id. at p. 677.)
Attorney Castro ultimately represented A.F. at the hearing on her DVRO application. Following a six-day hearing over the course of several months, the court issued an oral tentative statement of decision. A.F. requested a written statement of decision and filed proposed principal controverted issues, to which the court responded. After the court issued its written proposed statement of decision, A.F. filed objections, which the court addressed in its final statement of decision (SOD).
This appeal followed.
II. Factual Background
A. A.F.'s Family Life
After their divorce, A.F.'s parents generally followed their stipulated agreement whereby A.F. alternated visiting Father for long weekends (Friday afternoon to Monday morning) and short weekends (Saturday and Sunday). In 2016, they agreed A.F. would return to Mother's home at 6:00 p.m. on long weekends in exchange for Father receiving extended visitation hours on short weekends.
In 2017 and 2018, both parents remarried, and A.F. gained a stepsibling in each household. The first two alleged incidents of abuse occurred during the same time frame.
Sometime around 2020, the parents began having difficulty reaching compromises regarding periodic deviations to the visitation schedule. In the meantime, the three additional alleged instances of abuse occurred in 2019 and 2021. A.F. applied for a DVRO in April 2021.
B. Hearing Testimony
The hearing on A.F.'s DVRO application began in October 2022. A.F. alleged that Father abused her on five separate occasions. She testified on her own behalf in addition to eliciting testimony from Mother, her treating therapist, and an expert psychologist. Father and his current wife (Stepmother) also testified.
1. June 2017 - A.F.'s Eighth Birthday Party
a. A.F.'s Testimony
A.F. testified that the first time she remembered Father abusing her was at her eighth birthday party. It was held in a park with Father's extended family. A.F. and Stepmother discovered there was no toilet paper in the restroom, so Stepmother asked A.F. to go ask Father for some napkins.
Father asked why she needed the napkins, and A.F. was too embarrassed to tell him. She said he then got "really angry" and "put his hand underneath my legs and interlocked his fingers and picked me up and [walked] me towards the grass." She explained that she could tell he was angry because "[h]e had like an expression on his face he gets every time he's really angry" and "he gets really red in his face." She also indicated that the position she was in was uncomfortable and really hurt.
A.F. tried to kick to get away from him, and once they got some distance away from the tables, Father dropped her onto the field. He then pinned her down and covered her mouth so she could not scream. She said no one came to help her. Upon further probing, she testified that she did not recall anything that happened afterward that day.
b. Father's Testimony
Father did not recall A.F. asking for napkins. Rather, he said she became hysterical because he would not let her have cake while they were still setting up for the party and waiting for guests to arrive. He picked her up to remove her from the situation to give her a chance to calm down. Father could not recall how he picked her up but said he may have carried her laying across him and thought she probably was kicking her feet. He carried her about 50 feet away and then knelt to talk to her about her behavior. During their conversation, A.F. stopped having what Father described as a tantrum and then ran back over to the birthday party.
Father said A.F. had a lot of fun afterward because they played games, opened a pinata, and went to the beach after the party.
c. Stepmother's Testimony
Stepmother testified that she did not go to the restroom with A.F. but that A.F. did throw a temper tantrum after lunch. She remembered A.F. and Father walking across a grassy field together and speaking for a bit before A.F. ran back to the party. Thereafter, she recalled A.F. having fun running around with her cousins.
d. Mother's Testimony
Mother explained that A.F. was crying and tearful when she picked her up after the party. According to Mother, A.F. told her about asking Father for napkins and said he kept pressing her and got angry when she did not tell him why she wanted them. He grabbed her between the legs, carried her to the wet grass, pinned her down with his hand over her mouth because she was screaming, and hit her on the side of her bottom. A.F. told her Father eventually got up without saying anything to A.F. and walked back over to the party.
2. August 25, 2018 - The Bike Ride/Running Outside Incident
a. A.F.'s Testimony
A.F. recalled being upset because Father was late picking her up from a birthday party. When they went back to Father's home, dinner was not her favorite meal, but Father told her she had to eat her food or she could not get up from the table.
A.F. decided she wanted to go for a bike ride to calm herself down after dinner, but Father told her she could not because it was too late. She said he then got "really angry" at her, although she could not remember why. She explained that he got that expression on his face he got every time he was angry and had an angry tone of voice. Because she was scared, she ran out of the apartment into the dark without shoes on. She proceeded down the driveway, turned right, and ran down a street with no sidewalks. After turning right at the next street, she saw that Father was chasing her.
When asked why she was trying to run away from Father, she said, "I was really afraid that he was going to hurt me." Counsel asked why and she responded, "[b]ecause he was really angry and when he's angry he hurts me." She remembered thinking, "[m]y dad is going to kill me" and hearing him breathing hard behind her in the darkness. After turning right again, she started thinking, "God is with me." She did not remember anything else about the evening other than ending up safe at Mother's house. However, she later described the area around Father's home as unsafe because she had seen people around the apartment complex who made her feel uncomfortable.
b. Father's Testimony
Father recalled A.F. running out of the apartment into the darkness that night and said he ran after her because he was scared. He asked her to stop but did not catch her. He recalled A.F. being angry, not afraid, and explained that she ran all the way around the block and back to the apartment.
c. Mother's Testimony
Mother explained that she received a text message from Father indicating that A.F. was tired and throwing a fit and would be calling Mother soon. A.F. then called crying, and Mother said she sounded scared and begged Mother to pick her up.
When A.F. got into the car, she told Mother she was "fearful" of Father and had tried to run away. A.F. also told Mother she felt like Father was going to try to kill her and had been praying in her head.
3. September 14, 2019 - The Earring Incident
a. A.F.'s testimony
A.F. contends the next time Father abused her was on a Saturday following her soccer game. On the way to the grocery store, A.F. pulled an earring out of her bag and tried to put it in her ear. She dropped it, and it fell into the hole where the seat belt comes out of the seat. She tried to retrieve it but could not reach it. Father attempted to help her after they parked at the grocery store but could not get to it either. He said they could try again once they returned to the apartment.
When they reached the apartment, Father tried once more without success and then suggested they eat lunch and try again afterward. A.F. had only recently gotten her ears pierced and "was really worried and scared [she] wasn't going to get [her] earring and that [her] piercing was going to close," so she tried again. At that point, she testified that Father was getting angry and had "that tone in his voice." She said he yanked her out of the car, pushed her against the side of the car, and then punched her in the upper right thigh. She started crying and ran up to the apartment and into her room.
A.F. expressed that she was really upset and afraid Father was going to hurt her again. After banging on her bedroom door yelling for her to come out for lunch, Father threatened to take the door handle off. At that point, A.F. ran out of her room, grabbed Father's phone, returned to her room, and locked the door. When she heard him unscrewing the screws from the door handle, she called Mother. Father came into the room and shoved her off the bed and toward the front door. A.F. climbed onto her bed and yelled, "[p]lease go away, please go away." He stood about six feet away and responded, "I'm not doing anything. I'm not doing anything."
When Mother arrived, A.F. ran down the stairs and got into her car. They returned to Mother's house. A.F. later discussed with Mother and her maternal grandparents how scared and unsafe she felt that day, so they bought her a Gizmo watch to allow her to contact them.
b. Father's Testimony
Father did not recall stopping at the grocery store after the soccer game, but he remembered A.F. looking for her earring in the back seat. She told him she wanted him to get scissors to cut open the back seat. He told her to get out of the car and suggested they go eat lunch, look up on YouTube how to take the seat out, and then go back and try again to retrieve the earring. She angrily responded, "no, no," so he reached in to pull her out of the car. She kicked him, and he gave her a "swat on the butt" for kicking him. Father attributed A.F.'s behavior to being hot, tired, and hungry after the soccer game in addition to angry about not getting her way. He testified he was not angry with A.F. that day.
A.F. ran up to the apartment, and Father followed. He did not recall what happened after that, other than that A.F. returned to Mother's house.
c. Stepmother's Testimony
Stepmother was in the car when A.F. dropped the earring, but she went to make lunch when they got home. Father and A.F. stayed in the car to try to retrieve the earring, but eventually A.F. stomped angrily back up to the apartment and into her bedroom. Father spoke to her through the door and tried to get her to come out to eat and watch a video he had found on how to access the earring, but A.F. yelled that he needed to do it. She described A.F. as angry and as yelling and crying at the same time. A.F. subsequently went to Mother's house. Father and Stepmother found the earring the next day.
d. Mother's Testimony
Mother explained that she received a call from A.F. in which she could hear A.F. screaming and crying and talking to Father. She recorded the call, and the recording was played during the hearing. Mother went to pick A.F. up, and A.F. got into the car sobbing. A.F. told her about dropping her earring in the seat and Father telling her they needed to go upstairs to eat. A.F. said when Father grabbed her out of the car, she tried to kick him in the groin, and Father responded by hitting her with a closed fist.
According to Mother, A.F. told her she ran up to her room and locked the door, then ran out to grab Father's cell phone before returning to her room. Father then apparently tried to remove A.F.'s door handle or the entire door, at which point A.F. called Mother and Mother started recording.
e. Interview by Child Welfare Services (CWS)
A.F. recalled having talked to CWS about her birthday party as well as this incident involving the earring. Father also acknowledged being interviewed by CWS and told a social worker he believed Mother felt it was "inconvenient" having him be a part of A.F.'s life. However, the court received no evidence of substantiated findings of abuse by CWS.
4. March 6, 2021 - The Television Remote Control Incident
a. A.F.'s testimony
The next incident A.F. recounted began when A.F. was watching television at Father's apartment. She stated that Father stormed in and yelled at her to get off the television and give him the remote. He then moved within six inches of her face and repeated the same statement. While she did not recall her response, she remembered that she wanted him to leave her alone and wanted to continue to watch television. She described Father as "angry and frustrated" and indicated she was "afraid and startled" because she said, "as a far as I know I didn't do anything wrong."
A.F. "froze" and did not let go of the remote. Father then proceeded to pry her fingers away from the remote one by one, which she claimed hurt badly. A.F. ran to the front door and tried to get out, but Father hit her hand away and blocked the door. In response, A.F. "tried to kick him in between the legs to get out the front door." He hit her foot away, and she ran to her room. Father followed, forcefully opened the door, shoved her off her bed by her shoulders, pinned her against the corner of her dresser chest-first, and then hit her on her lower back near her bottom.
Her therapist's treatment notes reflected A.F. told her he slapped her on the butt.
Father left the room, and A.F. called Mother from her Gizmo watch in tears. Mother arrived, and A.F. ran out of her room and down to Mother's car. She subsequently told her therapist, Janet Bastien, L.M.F.T., about the incident. Bastien recommended A.F. get a cell phone so she could call 911. Her maternal grandfather promptly bought her one.
b. Father's Testimony
According to Father, A.F. stared straight at the television and ignored him the first time he asked her to turn it off. She also ignored him the second time he asked, at which point he explained Stepmother was trying to get her baby sister to bed and they could turn the television back on or play a game after the baby fell asleep. He then told her he was taking the trash out to give her a couple of minutes.
When he returned to the apartment, he said, "[A.F.], I'm going to have to take the remote from you now and turn off the TV." He then pulled the remote from her two clutched hands. She said she was going to Mother's, ran to her room, retrieved her backpack, and charged toward the front door. He blocked the door and she said, "Get out of my way." He said it was dark outside, and she responded that she was going to Mother's. He told her she could wait in her room, at which point she kicked him in the shin and then ran into her room and slammed the door. He followed her, opened the door, and gave her a swat on her bottom for kicking him.
c. Stepmother's Testimony
Stepmother largely reiterated Father's testimony, except she recalled A.F. punching Father after he took the remote. She described Father's demeanor as calm and said he was clear about his expectations. After A.F. went back into her room and Father followed, she heard "what sounded like a swat to the bottom, like a hand on cloth."
d. Mother's Testimony
Mother said A.F. called via her Gizmo watch, crying and frantic, and begged Mother to pick her up. When she arrived and A.F. got into the car, A.F. described the sequence of events in the same way she later testified to at the hearing. Mother said when A.F. told her where Father struck her, A.F. "pointed towards her backside and [Mother] assumed she was pointing to her bottom."
Mother called the police after they reached her house. An officer told her it was a parenting issue and did not contact or arrest Father.
5. March 21, 2021 - the Visitation Schedule Dispute
a. A.F.'s testimony
A.F. explained that she usually left Father's at 6:00 p.m. on Sundays. However, Mother texted her on her Gizmo watch that night to say, "What are you wanting to do tonight; are you wanting to stay at your father's house? Your father is texting you should stay at his house. Have you talked to him?" She responded, "no" and went to talk to Father, who told her he had already told Mother she could pick up A.F.
Confused, A.F. went outside to call Mother from the Gizmo watch. Mother told her that if she came, she would be violating the court order and so she needed a message from Father saying she could retrieve A.F. A.F. went back to Father, who repeated the same thing, and then went outside to call Mother again. She grew more confused and frantic as they continued to tell her conflicting things over the course of an hour and a half. A.F. did not recall how many times she went back and forth between parents but said it grew "excruciating" and "upsetting." Eventually, she said something mean about Stepmother and her stepsister, and Father became angry. A.F. testified she was afraid if she stayed at Father's house, he would try to hurt her because he was "really angry."
At that point, A.F. went back outside to the lower-level and called 911 from the cell phone she kept in a hidden pouch under her clothes. She and her maternal grandmother had made the pouch because she was afraid Father would confiscate the phone. Father asked who she was calling and then came and stood next to her until the police arrived. A police officer asked her questions, allowed her to get into Mother's car when she pulled up, and then asked Mother questions. A.F. cried on the way home.
b. Father's Testimony
Father testified that Mother picked A.F. up Sunday morning to take her to church and returned her about four hours later just before lunchtime. This was the first time this had happened. When A.F. returned, he said her demeanor had changed. Nonetheless, they went to the park in the afternoon, and he recalled that A.F. was calm and had fun with the baby.
When they returned to the apartment, A.F. told him it was time to go. Father explained that he had talked to A.F. earlier in the day about returning to the court-ordered return time of Monday at 8:00 a.m., so he viewed her actions of packing her bag and saying it was time to go as defiance.
He described A.F. as frustrated when he reminded her that they were defaulting to the court order. She demanded that he take her to Mother's house and then went outside. He said when A.F. was outside communicating with Mother, he could see her out the window. He could not recall if it was at that moment or later that he and Stepmother were surprised to see that she had a cell phone.
A.F. came in and asked him to send Mother a text message, to which he responded to the effect of, "Your mom and I are talking about this, and your mom knows that she can come get you." The parents were texting each other throughout the evening. Father said he did not share everything the parents discussed with A.F. because he was trying to communicate with Mother per the court order not to "discuss parenting things with your kids." He acknowledged A.F. was confused and angry.
After going to call Mother again, A.F. returned, asked again that he send a text message, and then violently attacked him and threatened to attack her stepsister and Stepmother while making an unkind remark about Stepmother. He followed her out to try to talk, but she responded, "Well, talk. Talk. Are you done? Okay, there, you talked. Now take me home." Then she said, "I'm calling the police, and you're going to jail like you did last time." He stood next to her while she called the police.
c. Stepmother's Testimony
Stepmother described A.F. as withdrawn when she returned from church and said that at some point A.F. confronted both parents as to whether they had looked in her backpack. They said no, but from then on, she became more angry and withdrawn.
According to Stepmother, A.F.'s mood improved at the park. However, A.F. then commented that they should get back because she had to go soon, which caught Stepmother's attention because she was under the impression A.F. was spending the night.
When they returned to the apartment, A.F. started packing, and Stepmother told Father she did not think A.F. was aware she was spending the night. Father went to talk to A.F., at which point A.F. became angry, upset, and confused. Father offered A.F. his cell phone to call Mother, but she refused and went to contact Mother. After recounting the same back and forth and the threats to harm her and the baby, Stepmother said A.F. pulled a cell phone out of her backpack that Stepmother and Father had never seen before and called the police. The police arrived but did not arrest Father.
d. Mother's Testimony
Mother testified that Father sent her a text message stating that he was going to return A.F. at 8:00 a.m. that Monday morning. She then sent A.F. the text message asking what she wanted to do. She said she received several rounds of text messages from A.F. saying Father told her Mother could pick her up, and from Father saying Mother would violate the court order if she came. Mother provided both sets of messages to the court.
Once A.F. told her she was going to call 911, Mother and her parents drove to Father's apartment and also called 911. They took A.F. home, and Mother said A.F. was flat and not herself the next day.
6. A.F. Applies for and Receives a Temporary Restraining Order
In April 2021, A.F. received a temporary restraining order against Father and said she felt relieved and safe from Father hurting her. She told the court she was requesting a DVRO "[b]ecause I'm afraid of my father. And my father has hurt me by like hitting me, restraining me, calling me names. And he has never tried to like stop. And I don't believe that he will stop if the permanent order goes away[.] I believe that he will start up again."
7. A.F.'s Therapy Treatment
In around April 2020, A.F. began seeing Bastien with Mother, her new husband, and A.F.'s stepsister for family therapy and, in part, to help A.F. improve her relationship with her stepfather. In late September 2020, Bastien began individual therapy sessions with A.F. She obtained Father's consent for the family therapy and said she did not need to obtain renewed consent to switch to individual therapy.
Bastien became board certified that same year.
Bastien testified extensively about material she recorded in her treatment notes. For instance, she noted that A.F. repeatedly mentioned not sleeping well at Father's house because she shared a room with the baby, who woke her up multiple times per night. She also noted that Father's tone triggered A.F. and caused her to shut down.
According to Bastien, several factors caused A.F. early childhood trauma including vague memories related to a figure in a hoodie; animals being eliminated from her presence; and "emotional incidences clothing[/]imaging." In terms of current trauma, Bastien identified six grounds for finding A.F. had experienced trauma: (1) lack of sleep; (2) maladaptive dreams or nightmares; (3) recurring thoughts during the waking state that cause anxiety and fear; (4) triggers, (5) diet and trouble eating; and (6) avoidance. She said all six were more attributable to Father than the maternal family.
A.F. told Bastien she thought it may have been Father, but she never confirmed that it was him. No one else testified regarding the figure in the hoodie.
Bastien did not further explain these last two memories during the hearing.
Bastien's intake assessment of A.F. in September 2020 was that she had an adjustment disorder. Bastien then changed her assessment a month later to adjustment disorder with anxiety. In November 2020, Bastien opined that A.F. suffered from chronic PTSD. She said A.F. reported nightmares about a male in a hoodie that she attributed to the PTSD. When asked what was causing A.F. to experience PTSD in October 2021, Bastien listed trouble sleeping, "overly thinking about the court process" and her role in it, and how the court process would affect her and Father.
During Bastien's direct examination by A.F.'s counsel, the following exchange occurred:
"Q: And PTSD there, is and you can correct me if I'm wrong, there is an initial seed of trauma from which those symptoms come later; is that correct?
"A: The past does become present exactly.
"Q: So did you-based on your discussions with [A.F.], did you identify any trauma in her past?
"A: Yes.
"Q: What trauma did you identify in her past?
"A: There [were] memories quite young, someone in a hoodie, a male figure. She was not able to-and this is typical
sometimes trauma having trauma amnesia and not always having all the clear, and our memory, you know, can be faulty at times due to that. Visual. And she had visual and she had dreams; this is very typical of PTSD.
"Q: And so the trauma was just a hoodie related, I guess...
"A: Scary.
"Q: Scary.
"A: Scary.
"Q: Would you identify any other sources of trauma in her past?
"A: You know, not very specifically but it's more of a general, just fear. There was not, you know, it was mostly just fear around her dad.
"Q: And when you say fear around her dad?
"A: Her bio dad."
Due to this assessment, Bastien engaged in therapy to treat A.F.'s trauma.
Bastien helped A.F. write letters to Father expressing her feelings. In her letters, A.F. articulated that she did not like that he yelled and spanked her like a three-year-old, made her do laundry in a laundry room located far from the apartment, and told Mother he would take the Gizmo watch away if she wore it to his home. She also explained that she did not want to go on a backpacking trip with him; was hurt when Father called her a "spoiled brat" and said she would never get a job or have friends because of her bad attitude; and was upset when he shoved raw chicken in her face and tried to get her to cut out the backbone. She said Father never discussed the letters with her.
Bastien also worked with A.F. to develop a safety plan. The plan was that she would call Mother or 911 if she felt afraid or unsafe or if Father was hurting her. She could also run out of the house and find a neighbor. Bastien explained that she developed the safety plan because A.F. felt fearful about visiting Father.
Bastien acknowledged she sometimes met with Mother and that Mother shared information about the legal proceedings and her concerns about Father. She only spoke with Father once and indicated it was not so much a dialog as him directing her what to do. She described him as having an "authoritarian parenting style" that produced fear in his daughter.
Throughout her notes, Bastien indicated the legal process was very stressful for A.F., and she described it as not age appropriate. She said A.F. told her she was very tired from meeting with her attorney on a Tuesday and Thursday for five hours each day with a one-hour drive home. She also noted as concerns that A.F.'s attorneys were telling A.F. not to speak with Bastien, which made her job more difficult, and that A.F. was "being groomed by a legal team." She observed A.F.'s emotional state decline from January 2021 through March 2021, but she could not say Father was the sole cause. However, by February 2022, she indicated A.F. was getting better at selfadvocating and becoming less fearful.
8. Expert Testimony by Dr. Linda Altes
Dr. Altes reviewed Bastien's treatment notes and hearing testimony, Father's declarations, some of Father's testimony, and some of A.F.'s testimony before testifying regarding Bastien's diagnosis and methodology. She opined that "the parenting that [A.F.] received from her father went beyond normal levels of discipline, training, parenting, and went into the realm of domestic violence because of the pattern of intimidation, coercive control, and threat. Threat of harm." She based this conclusion, at least in part, on the fact that "it's really very rare for a therapist to do safety planning with a minor[,]" and "[i]t's also fairly rare to diagnose a minor with PTSD" and begin intensive trauma treatment. The following exchange subsequently took place with A.F.'s counsel:
"Q: And so in your opinion did the underlying information and the SOAP notes support her diagnoses?
Bastien had earlier testified that SOAP was for an acronym for the boxes on her treatment notes, which stood for "subjective," "objective," "assessment," and "plan."
"A: Absolutely. You know, there are very specific criteria for post-traumatic stress disorder. And you can't make a diagnosis if you don't meet those criteria. And she found the criteria that were sufficient and actually exceeded the number necessary to make and support a diagnosis of post-traumatic stress disorder.
"Q: So you testified that it was unusual to diagnosis [sic] a minor with PTSD. Why is that?
"A: Well it's-it is by definition, a diagnosis we give when someone has exposure to an actual or threatened death or serious injury. Either by directly experiencing it or by witnessing it. So there has to be a traumatic event witnessed or experienced that would result in death or serious injury in order to get the diagnosis. And then you have to meet the other criteria."
Dr. Altes went on to explain that individuals diagnosed with PTSD will be "over reactive to certain triggers." In A.F.'s case, she became fearful when her father had an angry expression on his face, which triggered her to go into a "fight, flight freeze mode" and have verbal and physical outbursts. Dr. Altes could not identify anywhere in Bastien's notes or testimony specific threats Father made to A.F. that would cause her to fear for her life. Rather, she indicated A.F.'s fear was based on her perception. She attributed Bastien's diagnoses to a "pattern of fear, intimidation, coercive control" and A.F. "sharing her fear based on her perceptions and past experiences." Dr. Altes confirmed that she never examined or tested A.F. herself, nor did she evaluate whether A.F.'s perception was reasonable. Instead, she noted that Bastien responded in a way that indicated Bastien thought the fear was reasonable.
III. The Court's Decision
The court issued a 55-page SOD that was both thorough and thoughtful in analyzing the unique circumstances presented by this case. Overall, the court found Father's testimony regarding the incidents underlying A.F.'s DVRO request more credible than A.F.'s. The fact that A.F. appeared to have been extensively prepared to stick to a certain narrative particularly concerned the court. A.F. repeatedly stated "that Father would become very red in the face and get a really, really angry tone in his voice[,]" and that "when he gets really angry he hurts or hits me." However, the court questioned A.F.'s credibility because she "consistently returned to this mantra of how Father looked and sounded even when it made no sense in the context of the rest of her testimony about a particular incident, and even when she had provided no facts indicating a credible reason why Father would get extremely angry at her or threaten her."
In the end, the court concluded, based on the totality of the evidence, that A.F. had not met her burden of proving by a preponderance of the evidence that Father committed domestic violence against her or disturbed her peace within the meaning of the DVPA. The court, therefore, denied her application for a permanent DVRO and dismissed the case with prejudice.
We will elaborate on the court's rulings on specific issues post. However, we note here that the court summarized its findings, in part, as follows:
"Father and [A.F.] have been at odds, and their verbal and physical confrontations have undoubtedly caused much distress to [A.F.]. But as the Court will explain, [A.F.] has failed to prove by a preponderance that her distress is the result of abuse as that term is defined in the DVPA. Rather, is it much more likely the result of ineffective parenting (and co-parenting), a lack of effective communication, a lack of respect and empathy on both sides, and an unwillingness to compromise and change. Four of the specific instances alleged by [A.F.] involve occasions when [A.F.] lashed out, disobeyed Father, or acted in a manner that presented a danger to herself or to property-in other words, they were all occasions that justified some manner of parental control or discipline. And, the evidence shows, Father's chosen methods of discipline-though perhaps not the most effective or empathetic -were nevertheless proportionate to the occasion and reasonable under all the circumstances. The fifth incident involved a regrettable decision by both of [A.F.'s] parents to enmesh her in a failed negotiation over the length of a visit, ending with [A.F.] again lashing out at Father and threatening her baby sister and stepmother. It was not abuse, but ineffective parenting and coparenting, that fueled [A.F.'s ] unhappiness that night."
As for A.F.'s allegation that Father disturbed her peace, the court noted it rested "principally on her assertion that she suffers from PTSD and trauma that Father both caused and exacerbated by his conduct." The court found, however, that A.F. "failed to provide evidence of what [A.F.'s] own expert testified is the necessary factual predicate for a valid diagnosis of PTSD." Further, even if she were properly diagnosed with PTSD or severe trauma, she failed to prove by a preponderance of the evidence that Father caused the underlying trauma or knew about the diagnosis and acted in disregard of that knowledge. The court also found A.F. failed to prove "that Father's actions were unreasonable under all the circumstances" and that her "fears of Father were reasonable and her reactions to Father's efforts to parent were more likely than not the result of an underlying trauma, rather than merely the acting out of a frustrated, angry or defiant child."
In discussing each of the alleged incidents of abuse, the court pointed out that some of the incidents occurred at least a year apart. Between the June 2017 birthday party and the August 2018 incident where A.F. ran out into the dark, the court highlighted that A.F. "went on to have regular visits with Father." It also emphasized, "[t]he Court received no evidence that there were other inappropriate incidents between Father and [A.F.] in the interim and it is a reasonable inference that their visitations were uneventful." Likewise, the court noted the earring incident "occurred more than a year after the last incident, with no report of any improprieties or violence in the interim."
Statements of decision generally are not appealable. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) However, "[r]eviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits." (Ibid.) Because the SOD in this case was signed and filed; the court therein dismissed the case with prejudice; and no subsequent orders or judgments appear in the register of actions; we conclude the lower court intended the SOD to be its final decision in the case and exercise our discretion to treat it as such. Furthermore, an order refusing to grant injunction is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).) In so concluding, we noted that A.F. actually appealed the April 18, 2023 proposed statement of decision, not the May 5, 2023 final SOD. The April 18, 2023 order clearly was not the court's final decision on the merits and, thus, was not appealable. Nonetheless, because we conclude the final SOD was appealable and Father does not suggest otherwise, and because the June 8, 2023 appeal was timely either way (see Cal. Rules of Court, rule 8.104(a)(1)), we construe the appeal as from the final SOD. (Cf. Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22 [construing a notice of appeal of an order denying a new trial as being from an existing subsequent judgment where it was reasonably clear the appellant intended to appeal from the judgment and the respondent would not be misled or prejudiced]; see also Cal. Rules of Court, rule 8.100(a)(2) [“The notice of appeal must be liberally construed”].)
Before delving into A.F.'s specific allegations, we consider the legal framework relevant to the dispute. A.F. sought a DVRO pursuant to the DVPA. The purpose of the DVPA is to "prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (§ 6220.) Under the DVPA, the court may issue a restraining order upon evidence showing, "to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (§ 6300, subd. (a); Br. C. v. Be. C. (2024) 101 Cal.App.5th 259, 268.) In practice, the standard that must be met is a preponderance of the evidence. (Hatley v. Southard (2023) 94 Cal.App.5th 579, 592 (Hatley); In re Marriage of Davila and Mejia (2018) 29 Cal.App.5th 220, 226.)
As relevant here, abuse means: "(1) [t]o intentionally or recklessly cause or attempt to cause bodily injury[,] (2) [s]exual assault[,] (3) [t]o place a person in reasonable apprehension of imminent serious bodily injury to that person or to another[, or] (4) [t]o engage in any behavior that has been or could be enjoined pursuant to Section 6320." (§ 6203, subds. (a)(1)-(4).) Under section 6320, the court may enjoin a party from, among other things, "attacking, striking, . . . threatening, . . . battering, . . . or disturbing the peace of the other party." (§ 6320, subd. (a).)" '[D]isturbing the peace of the other party' refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party." (Id., subd. (c); Parris J. v. Christopher U. (2023) 96 Cal.App.5th 108, 119 (Parris J.).) A party may disturb another party's peace directly or indirectly. (§ 6320, subd. (c).) Such conduct "includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty." (Ibid.) "Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following: [¶] (1) Isolating the other party from friends, relatives, or other sources of support[;] (2) Depriving the other party of basic necessities[; and] (3) Controlling, regulating, or monitoring the other party's movements, communications, daily behavior, finances, economic resources, or access to services." (Id., subd. (c)(1)-(3).)
To provide context for our subsequent analysis, we also observe that A.F.'s framing of her argument has presented a moving target throughout the life of this case. She asserts in her appellate briefing that the theory that Father placed A.F. in reasonable apprehension of imminent serious bodily injury (§ 6203, subd. (a)(3)) was not pled. That contention is not supported by the record. In Mother's GAL application, she asserted, "[t]here is immediate harm and danger to the minor child if in Respondent/Father's care." She then claimed in the DVRO application that A.F. expressed fear for her life on multiple occasions. In the declaration A.F. filed in support of the DVRO request, as well as in the one supporting her first amended DVRO request, she stated that Father hurt her hand and she was "really scared that things were going to get worse" and that she was "afraid that he was going to hit [her]." She subsequently alleged in her hearing brief that she "fears for her safety when left alone with [Father]" and that Father posed a significant threat to "her physical safety."
She supported this allegation in several instances with her hearing testimony. For example, she said she ran from Father on August 25, 2018, because she was afraid he was going to hurt her and thought as he chased her, "[m]y dad is going to kill me."
As is apparent from the language of the statute, placing someone in "apprehension of imminent serious bodily injury" is only abuse if the victim's apprehension was reasonable. (§ 6203, subd. (a)(3).) The court thus faced the challenge of determining by what standard it should address reasonableness with regard to a child. Complicating this analysis, it was not a child interacting with just anyone-her apprehension stemmed from her father and his professed efforts to parent her. Further, A.F. argued that her reaction should be judged in light of her PTSD diagnosis.
By the end of the hearing, A.F.'s counsel had shifted gears and defined the behavior listed in section 6320 as "the most pertinent to [her] case." Specifically, he cited "striking, threatening, battery or disturbing the peace of the other party" as the relevant conduct. He went on to state, "This is a case about coercive control. It's coercive control manifested by a pattern of abuse that included fear and intimidation. It included physical aggression, it included verbal abuse, it included psychological abuse." This presented another pivot, likely in response to the court's frequent questioning regarding whether A.F.'s response to Father's actions was objectively reasonable. Section 6320, subdivision (a), which prohibits things like striking and battering, does not contain the same requirement that the actions be done "intentionally or recklessly" that section 6203, subdivision (a)(1) requires to prohibit these same actions. It also does not require that, to the extent Father disturbed A.F.'s peace by placing her in "apprehension of imminent serious bodily injury," that her apprehension be "reasonable." Thus, A.F. seemingly lessoned her burden by eventually relying on section 6320.
That said, she defined the case as being about coercive control, which imposes different limitations. In particular, it requires the DVRO applicant to prove "a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty." (§ 6320, subd. (c), italics added.) In listing examples, the statute further requires that the person to be enjoined "unreasonably" engaged in the conduct. (Ibid.) Thus, A.F. was now in a position of having to demonstrate that Father's conduct, more so than her reaction, was unreasonable. However, the relevance of her PTSD diagnosis became less clear.
The court did an excellent job explaining the conundrum this presented as well as A.F.'s evolving arguments:
"It should be noted that neither [A.F.] nor Father presented argument or legal authority prior to or during the hearing specifically addressing how [A.F.'s] PTSD allegations might affect the 'reasonableness' standard under the DVPA. [A.F.'s] position on this issue, however, became somewhat of a moving target. During closing argument, [A.F.'s] counsel first argued that [A.F.] should be viewed no differently than any adult in terms of what constitutes abuse (an unwanted striking, for example). When asked directly about whether Father could be found to have committed abuse if his actions were objectively reasonable and there was no evidence he knew [A.F.] had PTSD, counsel conceded the latter point but insisted that what is relevant is only Father's actions and [A.F.'s] subjective reactions as a child with PTSD, without citing legal authority. After the hearing had concluded, however, [A.F.] proposed for the first time, in her request for a statement of decision, an 'ordinary minor' standard for gauging reasonableness. This is the equivalent of the standard reasonable person analysis as applied to a child, but it curiously appeared to ignore [A.F.'s] alleged PTSD altogether. Thereafter, in her Objections, [A.F.] again contradicted herself, and asserted explicitly for the first time (and again without citing legal authority) that the Court should consider applying the so-called 'Eggshell Plaintiff rule in this case-a position more closely aligned with counsel's closing argument that ignored what Father knew or did not know. These belated and confusing proposals were unhelpful to the Court, particularly as they were unsupported by relevant authority.
"The Court itself has found no published cases addressing this issue specifically in the domestic violence context. [A.F.'s] current position, however, suggests something approaching a strict liability standard-e.g., one commits domestic violence if one's conduct puts his child (who allegedly has PTSD) in fear of her life, even if the conduct was objectively reasonable under the usual 'reasonable person' standard, even if the 'reasonable' or 'average' child would not react in that way, and even if that parent had no knowledge of the PTSD diagnosis."
Ultimately, the court concluded A.F. had not demonstrated by a preponderance of the evidence that she suffered from PTSD, so it measured the reasonableness of her fears against how a "reasonable (or average or ordinary) child would react under the same circumstances."
The court went on to explain its view that, even if it found A.F. suffered from PTSD or severe trauma, Father could not be found to have committed abuse unless the evidence also showed: (1) "he knew or reasonably should have known [A.F.] had PTSD or had suffered such severe trauma that his conduct likely would make her fear serious bodily harm or would destroy her mental calm-even though that same conduct would not evoke such a reaction in the average, non-PTSD-affected child," and (2) "that he nevertheless acted with that knowledge." It viewed this standard as "consistent with the protective purposes of the statute" and consistent with the" 'culpability' analysis in In re Marriage of G[. (2017)] 11 Cal.App.5th 773." Because A.F.'s counsel acknowledged during closing arguments that there was no evidence Father knew about A.F.'s PTSD diagnosis, the court concluded a DVRO was not warranted.
On appeal, A.F. focuses only on behavior listed in section 6320, subdivision (a)-specifically, striking, battering, and disturbing the peace. In so doing, she no longer mentions coercive control. Further, she returns to the argument sounding more in strict liability that her only burden was to demonstrate that Father intentionally struck or battered her, with no consideration given to why, and that she subjectively suffered emotional distress. It is from this vantage point that we address her arguments on appeal. Nevertheless, this history provides context to explain which arguments were fairly presented to the court below and the relevance of such issues as her PTSD allegations.
I.
The Court's Evaluation of the Treating Provider's Diagnosis
A.F. contends the court arbitrarily disregarded the treating provider's diagnosis based on improper and unsubstantiated criteria. Of greatest concern to her is the court's conclusion that A.F.'s PTSD diagnosis was not supported because no credible evidence showed A.F. experienced or witnessed an event that threatened death or serious bodily injury. She also argues the court raised A.F.'s burden of proof by discounting A.F.'s diagnosis because it was not rendered by a psychiatrist or "clinical diagnostician"-a requirement not supported by the record or California professional licensing law. Because the court's determination that A.F. did not have PTSD resulted in the court applying a reasonableness standard to A.F.'s emotional distress allegations and ultimately rejecting them, A.F. contends the error was prejudicial.
Father responds that what A.F. in fact challenges are the court's factual findings and credibility assessments, which he submits are supported by substantial evidence.
We conclude the court's finding regarding A.F.'s PTSD diagnosis was supported by substantial evidence and was not an arbitrary exercise of its discretion.
A. Additional Facts
The court evaluated and discussed Bastien's and Dr. Altes's opinions and A.F.'s PTSD diagnosis at length. It specifically cited Dr. Altes's testimony, quoted ante, that, by definition, "there has to be a traumatic event witnessed or experienced that would result in death or serious injury in order to get the diagnosis." The court therefore concluded that, "the evidence shows by a preponderance that [A.F.] presented to Ms. Bastien various symptoms that may be consistent with PTSD. However, critical evidence that, according to [A.F.'s] own expert, is necessary to make a proper diagnosis of PTSD, was never provided to this Court." Specifically, after noting that "an opinion is only as reliable as the information on which it is based," the court found "[A.F.] failed to present credible testimony or other evidence at the evidentiary hearing that it is more likely than not that Father ever threatened her with death or serious bodily injury, or that she witnessed someone else's death or serious injury at Father's hands-either in her early childhood, or, as discussed below, during any of the specific incidents alleged." It highlighted that "neither [A.F.] nor Mother testified to any such incident" and that Bastien "offered only second-hand reporting by [A.F.] of very vague, general fears surrounding an unidentified man in a hoodie, and generalized fears about Father's demeanor and treatment of her." The court found, however, no evidence of specific early childhood acts of abuse by Father against A.F.
The court then went on to address objections A.F. raised to the court's proposed statement of decision, which are similar to her arguments on appeal. In particular, the court found "disingenuous" objections taking issue with "the Court discounting Bastien's and Dr. Altes' testimony because their adoption of the PTSD diagnosis is based primarily on the symptoms demonstrated by [A.F.]." It explained that "[A.F.] can hardly be heard to complain if the Court holds her expert to the very standards on which she purports to rest her opinions." Likewise, the court was not persuaded by A.F.'s objection that the court disregarded testimony regarding "trauma amnesia" in PTSD patients. Although it noted that A.F. never testified about underlying trauma or struggling with memories of specific early trauma, the court presumed she raised this issue "for the purpose of suggesting that due to 'trauma amnesia' she cannot recall the underlying severe trauma that led to her PTSD diagnosis." In the court's view, A.F. "appear[ed] to be suggesting that this Court may infer the existence of the necessary underlying PTSD trauma as to [A.F.] specifically merely from the fact that PTSD victims often have trauma amnesia and [A.F.'s] own early memories are unclear." The court found such an inference was not justified by the evidence presented-namely, reports to her therapist of vague images of a man in a hoodie and "general fears" of Father.
Finally, the court concluded that "even if the diagnosis was medically correct, [A.F.] failed to provide sufficient credible evidence establishing that Father was the cause-that is, that he inflicted a severe early childhood trauma on [A.F.]." Further, the court noted that A.F.'s counsel "conceded at the conclusion of the hearing that there is no evidence Father knew that [A.F.] was suffering from PTSD or anything like it, such that he knew or had reason to know his conduct, which otherwise would not be objectively unreasonable, could trigger severe emotional harm in his daughter."
B. Legal Principles
We review an order denying a DVRO for abuse of discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495 (Nadkarni).) "[T]o the extent we are called upon to review the court's factual findings, we apply the substantial evidence standard of review." (Curcio v. Pels (2020) 47 Cal.App.5th 1, 12 (Curcio).) In so doing, we accept as true all evidence supporting the trial court's findings and resolve all conflicts in favor of the judgment. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143 (Burquet).) "If substantial evidence supports the judgment, reversal is not warranted even if facts exist that would support a contrary finding." (Curcio, at p. 12.)
At a bench trial, the trial court is the sole judge of witness credibility and may disregard the testimony, contradicted or uncontradicted, of any witness if there is any rational ground for doing so. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582.) Provided the court does not act arbitrarily, it may reject uncontradicted expert witness testimony. (Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.) On appellate review, we must defer to the trial court's credibility findings when supported by substantial evidence, and we do not reweigh credibility findings on appeal. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 364-365 (Niko).)
C. Analysis
1. Diagnosing PTSD
A.F. contends on appeal that PTSD is diagnosed based on symptoms, and no evidence supports the court's requirement of identifying a particular trauma. We agree with the lower court that this argument is disingenuous.
A.F. expressly acknowledges in her opening brief Dr. Altes's testimony that PTSD cannot be diagnosed unless the patient experienced, or witnessed, an event threatening death or serious bodily injury. She then concedes that Bastien testified that although A.F. could not specify an exact trauma, that is not unusual because trauma amnesia is common in PTSD. In other words, she de facto admits that both experts accepted this specific underlying trauma requirement even if they could not identify a specific triggering event caused by Father. Thus, the court's reliance on this essential factual predicate for a proper PTSD diagnosis was neither unsupported in the record nor arbitrary.
We feel compelled to also note that the disorder is called post-traumatic stress disorder, which by name implies stress following a time-specific trauma. Further, although A.F. sought to introduce evidence via her opening brief of a psychological journal article regarding how psychiatric disorders within the Diagnostic and Statistical Manual (DSM), including PTSD, are diagnosed, she did not elicit testimony or evidence of the current DSM definition of PTSD during the hearing, which may have shed more light on this question.
By asking us to effectively accept that A.F. suffers from trauma amnesia and that Bastien's diagnosis is otherwise sufficiently supported by A.F.'s reported symptoms, what A.F. essentially challenges is the trial court's weighing of the evidence supporting A.F.'s PTSD diagnosis. However, it is not the province of the appellate court to reweigh the evidence or determine credibility on appeal. (Curcio, supra, 47 Cal.App.5th at p. 12.) A.F. responds in her reply brief that it would be irrational to require a showing of trauma because a three-year-old cannot remember facts. But in making this argument, A.F. does not expressly challenge the court's conclusion that she did not provide substantial evidence to justify the inference that she even suffered from trauma amnesia. As the court pointed out, A.F. never testified about the vague images of a man in a hoodie or that she could not recall early childhood memories. The court also had "significant reservations about the credibility of [A.F.'s] version of the events." Below, as here, the burden of proof was A.F.'s, and the court concluded she did not meet her burden. Because, again, we do not weigh evidence or make credibility determinations on appeal (ibid.), we are not persuaded by A.F.'s argument.
Furthermore, the evidence A.F. highlights does not demonstrate that the court's decision was unsupported or arbitrary. As Dr. Altes testified, Bastien may well have documented symptoms that supported a PTSD diagnosis, but the court was not required to accept that these symptoms alone provided a sufficient basis for making the initial diagnosis- particularly when both experts testified otherwise. Furthermore, A.F. misstates Dr. Altes's testimony in claiming that diagnoses are made exclusively by looking at symptoms and behaviors, hypothesizing various disorders, and then eliminating ones that do not fit. Dr. Altes testified: "You know, when Janet Bastien diagnosed her, she-with PTSD. She was eliminating-we look at the symptoms the behavior, what we're seeing and we say: What does this fit? Well, it doesn't fit autism. It doesn't fit psychosis. It doesn't actually fit depression. It is a-almost perfect match for PTSD. So part of the scientific method, the analysis, is to generate other hypothos[es] and see if they fit, they didn't. Okay? And that-that is part of the process though that you go through when you make a diagnosis." (Italics added.) In other words, because Dr. Altes explained that this process of elimination was only "part of" the diagnostic process, this testimony further supports the court's interpretation of the evidence: that a PTSD diagnosis must be based on more than a subjective report of symptoms.
2. Other Factors
A.F. further contends the court abused its discretion by disregarding her PTSD diagnosis based on arbitrary criteria including that Bastien made the diagnosis after only a few sessions, that she did not perform psychiatric testing, and that she did not verify A.F.'s perceptions by interviewing third parties including Father. We are not persuaded.
Upon review of the portions of the SOD cited for these assertions, we conclude none of them support the conclusion that the court's exercise of its discretion was arbitrary. As to the timing of Bastien's diagnosis, the court noted during its recitation of background facts that Bastien had already treated A.F. as part of family sessions with Mother's family before she began seeing A.F. individually. The court went on to explain that Bastien "initially diagnosed [A.F.] with anxiety and adjustment disorder. After only a few individual therapy sessions she diagnosed her with PTSD in late 2020. Ms. Bastien was relatively new to the field at the time." First, this portion of the SOD, which is the section cited by A.F., does not support her assertion that the court disregarded the PTSD diagnosis because it was made swiftly. Second, even if it did, the court is entitled to consider the therapist's level of experience and the amount of contact she had with the patient in determining the appropriate weight to attribute to her diagnosis and testimony. (Cf. People v. Brekke (1967) 250 Cal.App.2d 651, 661-662 [explaining that the extent of a physician's investigation and the sufficiency of the basis for his opinion were issues that went to the weight of his testimony].)
A.F. also asserts the court improperly relied upon Bastien's failure to administer psychiatric testing. The cited portion of the SOD does not support this claim. Rather, it discusses only the fact that Dr. Altes assumed Bastien's analysis and diagnosis were correct and that she understood the diagnoses to be based only on A.F.'s subjective perceptions of Father's threats. The SOD does not state or imply that the court viewed psychiatric testing as necessary for a valid diagnosis, and we decline to infer such a strained interpretation. Further, the court heard and presumably considered Bastien's explanation as to why she did not perform such testing. Bastien explained that she did not administer any type of psychiatric or neuropsychological tests because she was not qualified to do so and thought it was significant that A.F. was a child, not an adult. She further stated that she did administer personality assessments to A.F. Thus, it does not necessarily follow that the court would conclude that psychiatric testing was warranted.
Finally, A.F. protests the court's perceived reliance on Bastien's failure to obtain additional information and context from others, including Father, in discounting the PTSD diagnoses. We offer two observations on this point. First, the court made clear that it was not Bastien's job to cross-examine A.F. as to whether her fears were reasonable or to determine whether abuse indeed occurred. Her job was to "address the apparent problem in front of her, which is that her client feels scared and helpless," and, "like any reasonable therapist," to give her patient "tools to self-protect (like a safety plan) to help boost her self-confidence." Thus, the court made clear Bastien's motive in diagnosing A.F. was to help her client, which was different from the court's goal of assessing whether abuse occurred, and that her testimony would therefore be weighed accordingly.
Second, testimony by Bastien and several other parties revealed that both Mother and the maternal grandmother periodically participated in A.F.'s therapy sessions and communicated with Bastien. Father, meanwhile, did not and was not even aware A.F. was receiving individual therapy. A court may consider "[t]he existence or nonexistence of a bias, interest, or other motive" (Evid. Code, § 780, subd. (f)) in evaluating witness credibility, and the fact that Bastien only heard one side of the story may reasonably have impacted her assessment of the situation.
More importantly, although the court may have considered or mentioned these facts, it ultimately did not depend on them in reaching its conclusion. Rather, the court concluded its analysis of the PTSD diagnosis as follows: "In sum, to the extent that [A.F.'s] theory of her case depends on her having suffered specifically from PTSD, the Court finds that she has failed to provide sufficient evidence of the factual predicate her own expert testified was essential to support a valid PTSD diagnosis." Thus, the deciding factor was the failure to identify a specific traumatic event, not these other elements. As we have already discussed, discounting the PTSD diagnosis on this basis was a reasonable exercise of discretion based upon substantial evidence.
3. Diagnostic qualifications
A.F.'s final assignment of error on this topic is that the court elevated A.F.'s burden of proof by discounting A.F.'s diagnosis because it was not rendered by a psychiatrist or "clinical diagnostician"-a requirement not supported by the record or California professional licensing law. On this point, it is not clear that substantial evidence supported the court's suggestion that a diagnosis could only be made, or would be more credibly made, by these types of practitioners. However, here again, this concern did not provide the ultimate foundation for the court's conclusion as to the PTSD diagnosis. To the contrary, despite Dr. Altes not being a psychiatrist or "clinical diagnostician," the court relied on the requirements she set forth for diagnosing PTSD. Under those standards, the court concluded A.F. had not met her burden. Thus, the court did not elevate A.F.'s burden and its exercise of its discretion was not arbitrary.
4. Conclusion
In sum, we conclude substantial evidence supported the court's determination (see Burquet, supra, 223 Cal.App.4th at p. 1143), and, therefore, the court did not abuse its discretion in finding A.F. had not demonstrated she suffered from PTSD. (See In re Marriage of F.M. &M.M. (2021) 65 Cal.App.5th 106, 115.)
II.
The Court's Interpretation of Section 6320, subdivision (a) and Whether There is a "Parental Discipline" Defense to the DVPA
Cases somewhat interchangeably refer to this concept of a parent's ability to reasonably discipline his or her child without legal consequences as an "immunity," "right," "defense," and "exception." We do not decide the issue of which term or concept is most appropriate as it was not briefed in this matter.
A.F. asks us to independently review the trial court's statutory interpretation of the terms "striking" and "battering" under section 6320. Under the DVPA, she contends the court must first determine whether abuse occurred and then decide whether the circumstances justify a restraining order. To do so, it must first define these terms and determine whether Father struck or battered A.F. intentionally. If he did so, she contends it is clear he committed abuse under the DVPA.
Relying on dictionary definitions, A.F. defines "strike" as "to deal (a person, an animal) a blow; to hit with some force either with a hand or with a weapon." Acknowledging that the court found that Father "swatted" and "spanked" A.F. on the buttocks, she defines "swat" as "to hit with a sharp, slapping blow usually with an instrument" and "spank" as "to strike, especially on the buttocks with an open hand." A.F. asserts that the plain meaning of "striking" includes "swatting" and "spanking" and that the undisputed evidence establishes that Father "delivered two blows with some force to A.F." Therefore, she concludes Father committed at least two acts of abuse under section 6203.
A.F.'s arguments regarding the spankings also have presented somewhat of a moving target. Contrary to the argument she makes here, counsel stated during closing argument, "I see that spanking, per se, doesn't need to ride [sic] to the level of domestic violence. Was it a component in coercive control? Here it was." However, if the question was whether Father exercised coercive control over A.F., then the court was entitled to consider whether the pattern of behavior (in this case, repeated spanking) "in purpose or effect unreasonable interfered with [A.F.'s] free will and personal liberty." (§ 6320, subd. (c).) Here, substantial evidence supports the court's conclusion that Father did not prevent A.F. from contacting Mother or leaving with Mother during the incidents that involved spanking. Thus, it is apparent why A.F. appears to be pivoting her argument about spanking in the briefing before us, because we would conclude the court did not abuse its discretion under a coercive control theory.
A.F. contends "battering" should be defined consistently with the intentional tort of battery. In her view, the elements thus would be those described in So v. Shin (2013) 212 Cal.App.4th 652, 669: "(1) the defendant touched the plaintiff with the intent to harm or offend plaintiff; (2) the plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would be offended by the touching." A.F. argues Father battered her under this definition because he hit her with his hand on two occasions, he intended to strike her, it caused her pain, and she was offended. She also asserts that picking her up "by her crotch" was battery.
A.F. submits that the court did not resolve the factual dispute regarding how Father picked her up but instead assumed he picked her up by her crotch. The court said, "The manner in which he picked her up is not inherently abusive. It may be debatable whether a between-the-leg hold is appropriate for an eight-year-old, if that is what Father did. But under all the circumstances, the Court cannot find it more likely than not constituted abuse."
In A.F.'s view, the court increased her burden of proof by requiring her to prove that the battery was objectively unreasonable. She asserts she was prejudiced by the court's legal error because, under a correct interpretation of these terms, the evidence shows Father struck and battered her on multiple occasions.
In framing her argument this way, A.F. seeks a statutory construction of the DVPA that wholly disregards any consideration of the parent-child relationship. A.F. argues the court erred by concluding that conduct that otherwise would be considered abuse under the DVPA was excused and not abusive because it fell under the umbrella of parental discipline. She contends the court's reliance on Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72 (Gonzalez) to import a parental discipline privilege into the DVPA was misplaced.
We disagree that the DVPA can or should be construed under these unique circumstances in a way that wholly ignores the parent-child relationship. Initially, we are not persuaded by A.F.'s opening premise that the court must first determine whether abuse occurred and then decide whether the circumstances justify a restraining order. By way of support, she cites section 6340, subdivision (a) in arguing "[t]he unambiguous langu[ag]e of the [DVPA] requires the court to determine the existence of a past act of abuse. Then, after a hearing, the court decides whether to issue restraining and protective orders." However, section 6340, subdivision (a) does not set forth sequential steps. It merely provides, in relevant part, that "[t]he court may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing." (§ 6340, subd. (a)(1).) The purpose of this provision is simply to protect the due process right to notice and the opportunity to defend one's actions at a hearing. (In re Marriage of D.S. and A.S. (2023) 87 Cal.App.5th 926, 934-935.) Furthermore, as section 6300 contemplates, the hearing itself often provides, as it did here, an opportunity for the court to hear evidence and argument that allow it to determine whether a past act of abuse occurred. (See § 6300, subd. (a) ["An order may be issued under this part to restrain any person for the purpose specified in Section 6220, if an affidavit or testimony and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse" (italics added)].)
Apparently recognizing the limitations of this argument, A.F. altered it in her reply brief, this time framing the argument under sections 6301, subdivision (c), and 6320, subdivision (a). As an initial matter, this new legal argument is forfeited for failure to assert it in the opening brief. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 707 (Meridian).) Furthermore, even if we were to consider it, we conclude it lacks merit. A.F. argues that only one statutorily defined act of abuse-disturbing one's peace-permits the court to consider the "totality of the circumstances." The other listed acts of "abuse" under the DVPA are simply defined according to their common definitions. Thus, she contends that only after finding abuse may the court consider "the totality of the circumstances" under section 6301 to exercise its statutory discretion to issue or decline to issue a restraining order. This argument misses the mark because it incorrectly presupposes the court has no discretion in applying the "common definitions" of the listed acts of abuse. Furthermore, section 6300 provides the court with authority to decide whether the party has presented "reasonable proof" of such acts. Finally, this contention also once again presupposes that no consideration may be made of the parent-child relationship, which may remove the conduct from the realm of abuse altogether.
Thus, in moving on to address A.F.'s contention that a parental discipline defense is not applicable to DVRO proceedings, we need not accept A.F.'s framing of the issue; namely, whether the DVPA's plain language permits a relational defense that renders a defined act of abuse to be "not abuse." In other words, the court is not required to first apply the definitions of "striking" and "battering," find that the conduct is "abuse," and then decide whether to declare it "not abuse." Rather, the court may look at the evidence and circumstances and determine that the actions fall entirely outside of the DVPA scheme. As we will discuss, we conclude A.F. has not shown that a court is barred from considering whether a parent engaged in reasonable parental discipline within the DVPA context. Therefore, we need not address her statutory construction argument relating to "striking" and "battering."
It is true that the plain language of the DVPA does not expressly carve out an exception or defense for reasonable parental discipline. However, we disagree this indicates the Legislature did not intend for courts to take the parent-child relationship into account. Rather, we recognize that when the DVPA went into effect in 1994, it was written on the background that a parent's ability to reasonably discipline a child had long been recognized.
In 1931, the court in People v. Curtiss (1931) 116 Cal.App.Supp. 771 noted that "there seems to be no disagreement among the authorities" that under the common law "a parent or a teacher (who stands in loco parentis) may inflict reasonable (or moderate) corporal punishment upon a child." (Id. at p. 775.) In 1955, our Supreme Court acknowledged that "[s]ince the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions" and may engage in "reasonable parental discipline." (Emery v. Emery (1955) 45 Cal.2d 421, 429-430.) Just prior to passage of the DVPA, the Fourth Appellate District again recognized that "[a] parent has a right to reasonably discipline by punishing a child and may administer reasonable punishment without being liable for a battery. [Citations.] This includes the right to inflict reasonable corporal punishment." (People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050 (Whitehurst).)
" 'As a general rule, "[u]nless expressly provided, statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with common law rules. [Citation.] 'A statute will be construed in light of common law decisions, unless its language" 'clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning the particular subject matter.'" '"' " (Presbyterian Camp &Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 501-503 [concluding that statutes that did not contain express language allowing fire liability based on a respondeat superior theory should be read as continuing to incorporate the theory given the respondeat superior doctrine's "deep history" in common law]; see generally Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 779, fn. 3 ["the Legislature is presumed to be aware of all laws existent at the time it passes a statute"].) Thus, to the extent the statute is silent on the topic, we construe that as demonstrating that the Legislature did not intend to interfere with this long-standing doctrine.
The lower court here relied on Gonzalez, supra, 223 Cal.App.4th 72, in concluding Father engaged in reasonable parental discipline. A.F. attempts to distinguish this case by arguing that the facts of Gonzalez indicated the daughter "consented" to the spanking as a disciplinary consequence, whereas A.F. did not consent. She asserts that Father's actions, therefore, should be deemed "retribution." In our view, A.F.'s interpretation that the daughter in Gonzalez "consented" to spanking is a stretch, and A.F.'s suggestion that discipline cannot be imposed upon a child without consent breaks new ground. Given the additional caselaw we have laid out demonstrating a broad and longstanding policy allowing parental discipline-with no reference to consent-we need not further address this argument.
A.F. offers several responses. First, she argues that our Supreme Court abrogated the doctrine of parental tort immunity in Gibson v. Gibson (1971) 3 Cal.3d 914, 922 (Gibson). Although this is true, in so doing, our high court commented that other jurisdictions that similarly abrogated a broad doctrine of parental immunity, "have nevertheless retained a limited one where basic parental functions are involved." (Id. at p. 921.) The court then stated:
"We agree with this approach in its recognition of the undeniable fact that the parent-child relationship is unique in some aspects, and that traditional concepts of negligence cannot be blindly
applied to it. Obviously, a parent may exercise certain authority over a minor child which would be tortious if directed toward someone else. For example, a parent may spank a child who has misbehaved without being liable for battery, or he may temporarily order the child to stay in his room as punishment, yet not be held responsible for false imprisonment." (Ibid.)
A.F. comments that this portion of the holding is dicta. However, absent evidence our Supreme Court has subsequently disapproved this dictum (see, e.g., People v. McGee (1977) 19 Cal.3d 948, 962), we conclude the high court's clear statement of what rights parents retained after it abolished a blanket rule of parental immunity should guide lower court decisions. Further, we find the reasoning persuasive.
Accordingly, we do not read Gibson as having abolished the concept that the law allows reasonable parental discipline, particularly given that subsequent cases have continued to apply it. (See Gonzalez, supra, 223 Cal.App.4th at p. 87; People v. Checketts (1999) 71 Cal.App.4th 1190, 1194 (Checketts) [concluding that "[s]ince it is well established that parents have a right to reasonably discipline their children by punishing them [citations], reasonable acts of discipline, including confinement to a particular location for disciplinary purposes such as sending a child to his or her room, would not be false imprisonment, as they would constitute lawful exercise of parental authority"]; Whitehurst, supra, 9 Cal.App.4th at p. 1050.)
We note also that, as recently as 2019, our Supreme Court cited Gonzalez and appeared to acknowledge that parents continue to have such rights. (See In re Ricardo P. (2019) 7 Cal.5th 1113, 1132, fn. 2 (conc. & dis. opn. of Cantil-Sakauye, C.J.) [noting that "[p]arents can do some things that the state cannot"].)
Next, AF suggests that, even if such a doctrine is recognized in other areas of the law, it plays no rule under the DVPA. We find it highly unlikely the Legislature and the courts would consider the parental right to reasonably discipline a child relevant in criminal, civil, and juvenile law-all of which may also involve causes of action for battery or assault in various contexts-and yet, somewhat ironically, intend the law to entirely disregard the parent-child relationship in the family law context when applying the DVPA.
Furthermore, viewing the DVPA as entirely divorced from any consideration of reasonable parental discipline would yield absurd results. If Father was charged with child abuse under the Penal Code but found to have engaged in nothing more than reasonable parental discipline, he would not be convicted and would not be separated from his daughter. (See Checketts, supra, 71 Cal.App.4th at p. 1194 [sending a child to her room for reasonable disciplinary purposes would not be false imprisonment]; Whitehurst, supra, 9 Cal.App.4th at p. 1050 [reasonable corporal punishment by a parent is not battery].) If child protective services opened a case against Father, Welfare and Institutions Code section 300, subdivision (a) would prohibit the court from assuming jurisdiction because "[f]or purposes of this subdivision, 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury." (Welf. &Inst. Code, § 300, subd. (a).) Thus, on this court's factual findings, the juvenile court would not interfere with his relationship with his daughter. Finally, tort law has long recognized that a parent may engage in reasonable parental discipline. (See Gillett v. Gillett (1959) 168 Cal.App.2d 102, 104 ["It is now established as California law that, while a parent is not liable to his child for the results of negligence, he has no immunity with respect to willful torts; that he may administer reasonable punishment with impunity, but when he exceeds that limit and does so willfully he commits a battery and is civilly liable for the consequences; the questions of excessiveness and willfulness are issues of fact for trial judge or jury to solve"].) While tort consequences generally are monetary and unlikely to result in the more severe severance of the relationship threatened by criminal and juvenile law, here again, reasonable parental discipline would not result in consequences. Despite all this, A.F. asks us to conclude that the familial relationship is irrelevant under family law, ignore any disciplinary purpose, consider evidence supporting a DVPA allegation in a vacuum, and effectively terminate Father's relationship with his daughter as a result. We decline to do so.
A.F. nonetheless argues that criminal and civil laws serve different purposes than the DVPA. In A.F.'s view, the purpose of the California Penal Code is to punish specific acts while civil tort law allows children to recover damages from their parents. The DVPA, on the other hand, seeks to prevent future abuse. This is true, and it authorizes restraining orders based on reasonable proof of a past act of abuse. (§ 6300, subd. (a).) But we see nothing inconsistent about these purposes. Our society has found valid reasons to deem reasonable parental discipline not a crime and not a tort. Applying these reasons in the DVPA context, if a parent reasonably disciplined his or her child in the past, it was not a past act of abuse and does not warrant restraint because future abuse is not likely in that context. In other words, the purpose of the statute can be upheld while simultaneously recognizing that a parent may reasonably discipline a child.
Furthermore, the potential consequences of the legal interpretation A.F. advocates are profound. Under her construction, if a parent grabs a child who is about to run into the street without the child's consent, the parent could be subjected to a DVRO. But if the parent does not grab the child, he or she could be charged with child endangerment (Pen. Code § 273a) or, worse, watch the child be hit by a car. If the child runs out into the street and, thankfully, survives, a parent who spanks the child to convey the seriousness of breaking that safety rule could be viewed as engaging in "retribution."
A.F. responds that the DVPA recognizes the use of force as self-defense as defined in Civil Code section 50. Thus, she submits that, for example, a parent who struck the hand of a child to prevent a burn from the stove could argue defense of others in justifying the use of force. Yet, by A.F.'s own acknowledgment, this defense is limited to situations where the person has an honest and reasonable believe that the person was in imminent danger of bodily injury. Applying so narrow a restriction on when a parent may grab, strike, or restrain a child, while not otherwise recognizing a reasonable right to parental discipline, is not realistic or workable.
Criminal law recognizes that children's brains are not fully formed or capable of some higher-level reasoning. (See Miller v. Alabama (2012) 567 U.S. 460, 471-472 &fn. 5 [acknowledging the strong body of research demonstrating the fundamental different between juvenile and adult brains and making it" 'increasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance' "].) Yet, A.F. asks us to remove any consideration of children's diminished executive capabilities. She contends we must continue to enforce parenting responsibilities while simultaneously taking away a number of disciplinary options. We do not view this as a reasonable interpretation of legislative intent.
There is no question that the line between disciplinary spanking and battery can be fine, but teasing out the distinction is left to the sound discretion of the family court. A.F. has not persuaded us to impose a categorical exclusion of any consideration of reasonable parental discipline in conducting this analysis. Furthermore, we do not break new ground with this conclusion because every other area of law recognizes that this concept may be considered and that the evaluation of parental discipline involves an assessment of the reasonableness of the corporal punishment. (See, e.g., Whitehurst, supra, 9 Cal.App.4th at p. 1050 ["whether the corporal punishment falls within the parameters of a parent's right to discipline involves consideration of not only the necessity for the punishment but also whether the amount of punishment was reasonable or excessive"]; People v. Stewart (1961) 188 Cal.App.2d 88, 91 ["It would be inconsistent to hold that the reasonableness of punishment is a proper question for the jury in an action for damages and in a prosecution under Penal Code, section 273a, but not in a prosecution of a parent under section 273d for inflicting injury upon a child"]; In re D.M. (2015) 242 Cal.App.4th 634, 640 ["the exception to dependency jurisdiction for reasonable discipline applies across the board to all of section 300's jurisdictional grounds"].) As one court explained in the dependency context, "we adopt for section 300 the same three-part definition of 'reasonable' parental discipline that courts have been consistently applying for decades in every other context in which it arises. Dependency law undoubtedly rests on a unique cluster of policy concerns, but the policy that prompts courts to balance a parent's right in deciding how to raise his or her child against the child's right not to be subjected to unreasonable discipline is not unique to the dependency system." (Id. at p. 642.)
Accordingly, we conclude the court did not err in applying the longstanding allowance of reasonable parental discipline within the DVPA context and considering it as a factor when determining whether, under the totality of the circumstances, Father's conduct constituted abuse.
III.
The Court's Interpretation of the DVPA's Standard for Disturbing One's Peace (§ 6320)
A.F.'s final argument is that the court erred in interpreting the DVPA as requiring her to prove her reaction to abuse was objectively reasonable in establishing her claim that Father disturbed her peace. She contends the statute requires only a showing that Father's intentional acts actually disturbed A.F.'s peace, with the focus being on the effect his actions had on her.
She acknowledges the reasonableness standard does apply to an allegation of apprehension of death or serious bodily injury and to coercive control. Thus, she challenges only the court's application of an objective reasonableness standard to her claims that Father disturbed her peace. She contends that, regardless of whether the court agreed with Bastien's PTSD diagnosis, the fact that she suffered the symptoms supporting the diagnoses demonstrated that her mental and emotional calm were destroyed.
This argument also bolsters A.F.'s effort to argue her peace was disturbed following the first three instances of abuse, which all occurred prior to her November 2020 diagnosis with PTSD.
Father disputes A.F.'s assertion that the court applied an objective reasonableness standard. He contends the court correctly required A.F. to prove based on the totality of the circumstances pursuant to section 6320, subdivision (c) that Father's conduct "destroyed" her "mental or emotional calm." He further insists that A.F. cited to nothing in the SOD or the record to show the trial court improperly employed an "objective reasonableness" standard in assessing the "disturbing the peace" claims and that, therefore, we must presume the trial court properly applied the standards recited in the SOD. We cannot agree.
In the portions of the SOD A.F. cited in her opening brief, the court stated as follows:
• "As this Court is obliged under various DVPA provisions to measure Father's conduct and [A.F.'s] reaction to that conduct by an objective 'reasonableness' standard, a question arises as to what that standard is in the case of a minor."
• "[A]bsent proof that [A.F.] more likely than not suffered from PTSD or severe trauma, the reasonableness of her fears should be measured by how a reasonable (or average or ordinary) child would react under the same circumstances."
• "[A.F.'s] allegation that Father disturbed her peace rests principally on her assertion that she suffers from PTSD and trauma that Father both caused and exacerbated by his conduct. But [A.F.] failed to provide evidence of what [A.F.'s] own expert testified is the necessary factual predicate for a valid diagnosis of PTSD. Even if she was properly diagnosed with PTSD or severe trauma, however, she failed to prove by a preponderance 1) that Father caused the underlying trauma; 2) that he knew about the diagnosis, and acted in disregard of that knowledge; 3) that Father's actions were unreasonable under all the circumstances; and 4) that [A.F.'s] fears of Father were reasonable and her reactions to Father's efforts to parent were more likely than not the result of an underlying trauma, rather than merely the acting out of a frustrated, angry or defiant child."
• "The Court simply finds that the evidence as a whole does not support that the specific events at issue here more likely than not occurred as [A.F.] may have perceived them, and does not support that her extreme fears were reasonable or that Father's conduct toward her was unreasonable and abusive, so as to warrant a restraining order."
In light of these statements by the court, we conclude the court weighed the reasonableness of A.F.'s emotional reaction in assessing her claims that Father disturbed her peace. Accordingly, we must address A.F.'s statutory construction argument.
We note the court explained further that section 6301, subdivision (c)'s requirement that it consider the totality of the evidence precluded it from considering alleged acts of abuse in a "vacuum," and required the court to "consider the context and any relevant evidence bearing on whether that conduct was abusive and/or the protected party's fear was reasonable under all the circumstances."
A.F.'s position is that the court incorrectly interpreted section 6320 in requiring her to prove her reaction to abuse was objectively reasonable. Statutory interpretation is a question of law, subject to de novo review. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 658; Hatley, supra, 94 Cal.App.5th at p. 590.)" 'As in any case involving statutory interpretation, our fundamental task is to determine the Legislature's intent so as to effectuate the law's purpose.'" (People v. Cole (2006) 38 Cal.4th 964, 974; People v. Murphy (2001) 25 Cal.4th 136, 142.) We examine the statutory language and give it a plain and commonsense meaning. (Cole, at p. 975.) If the statutory language is unambiguous, then the plain meaning controls. (Ibid.) If the language supports more than one reasonable construction, we may look to extrinsic aids like legislative history and ostensible objectives. (Ibid.; In re Young (2004) 32 Cal.4th 900, 906.)
On its face, section 6320 does not contain language allowing the court to apply an objective reasonableness standard when determining whether the party to be enjoined has disturbed the peace of the complaining party, unless the complaining party alleges a pattern of coercive control. The Second Appellate District recently reached the same conclusion while addressing this claim in the opposite procedural context. (Parris J., supra, 96 Cal.App.5th at p. 119.) There, the court did not apply a reasonableness standard in granting the former wife a DVRO against the former husband, and he argued on appeal that "when deciding whether a person's actions 'disturb[ed] the peace of the other party' under section 6320, courts must determine whether the conduct at issue would have objectively destroyed the mental or emotional calm of a reasonable person." (Id. at pp. 112, 119.)
In analyzing the statute, the Second Appellate District noted that "When defining other behaviors that constitute 'abuse' under the DVPA . . . the Legislature has expressly and unambiguously stated when a reasonableness standard applies." (Parris J., supra, 96 Cal.App.5th at p. 119 citing §§ 6203, subd. (a)(3) and 6320, subd. (c).) Accordingly, it concluded that "by omitting similar language from its definition of 'disturbing the peace of others,' the Legislature deliberately chose not to limit the DVPA's reach to conduct that would destroy the mental or emotional calm of a reasonable person." (Parris J., at p. 119.) Although it found the statute's language unambiguous, the Second Appellate District nonetheless reviewed the relevant legislative history. (Ibid.) It found nothing supporting application of an objective reasonableness standard there either. (Id. at p. 121.)
We agree the absence of language requiring that the party to be protected responded reasonably, when the Legislature expressly included reasonableness language elsewhere in the statute and within the DVPA, indicates no such limitation was intended. (See Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725 [" 'It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded' "].) However, we cannot conclude the Legislature thus intended to leave the application of this provision limitless. A.F.'s interpretation is that the enjoined party does not have to intend to disturb the protected party's peace; he or she just must commit an intentional act that accomplishes the result of causing the protected party to subjectively feel her peace was disturbed. We do not read A.F.'s briefing as even imposing a limitation that the intentional act be directed at the protected party (or anyone, for that matter). Such a broad construction would allow an applicant to obtain a DVRO against someone who inadvertently disturbed the applicant's peace or, as here, against someone who engaged in a some otherwise objectively reasonable act directed at the applicant, unaware that the applicant was uniquely susceptible to having his or her peace disturbed. Although we do not endeavor to set a hard and fast new standard as to what the statute requires, we do conclude that, at least within the context of a parent-child relationship, the Legislature did not intend it to apply so broadly as A.F. proposes.
As other courts before us have observed, restraining orders have significant consequences. Knowingly and intentionally or willfully violating a restraining order is punishable as a misdemeanor. (Pen. Code, §§ 166, subd. (c)(3)(A), 273.6.) When a peace officer has probable cause to believe someone has violated a restraining order, arrest is mandatory. (Pen. Code, § 836, subd. (c)(1); Curcio, supra, 47 Cal.App.5th at 13, fn. 6.) Where child custody is an issue, the presence of a restraining order demonstrating that the person has perpetrated domestic violence against the child within the previous five years creates "a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child." (Fam. Code, § 3044, subd. (a).) Additionally, "[t]here often will be some social stigma attached while a person is subject to a protective order. Existing employers may frown on an employee who is subject to such an order and prospective employers almost surely will. Thus, the restrained party may lose out on a promotion or a job. The continued existence of such an order likewise may, fairly or unfairly, interfere with the restrained party's social life." (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1291.)
Although the DVPA was intended to protect a broad class of domestic violence victims (Nadkarni, supra, 173 Cal.App.4th at p. 1498), given the serious consequences attendant to imposition of a DVRO, what A.F. seeks in the context of a parenting relationship is a bridge too far. She effectively asks for a strict liability interpretation that any time a child subjectively feels his or her peace has been disturbed, it is abuse and the child is entitled to a DVRO. If this were the Legislature's intent, it would not have included the language in section 6300 indicating that the court "may" restrain a person if evidence shows "to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (§ 6300, subd. (a).) The "may" and "satisfaction of the court" language implies the court has discretion, not that it is a strict liability statute. The same is true of the use of "may" in section 6320. (§ 6320, subd. (a) ["The court may issue an ex parte order enjoining a party ...."].)
Absent discretion to, in some manner, evaluate the actions and goal of the perpetrator and the response of the applicant, this language would be meaningless. There also would be no reason for the Legislature to have granted the court authority to evaluate whether "based on the totality of the circumstances" the conduct "destroys the mental or emotional calm of the other party." (§ 6320, subd. (c).) Furthermore, section 6300's requirement of "reasonable proof" of "abuse" implies some floor.
Few cases offer guidance as to where that floor lies in the parental context. The primary case describing conduct that does not rise to the level of abuse is Curcio in which the restrained party accused her former girlfriend in a social media post visible to friends and coworkers of "severely and disturbingly" physically and verbally abusing her. (Curcio, supra, 47 Cal.App.5th at pp. 5, 7-8.) The post stated that booking the girlfriend for comedy jobs and befriending her equated with supporting a rapist. (Id. at p. 5.) The lower court granted a restraining order, but the Second Appellate District reversed, finding the facts distinguishable from other cases in which the court restrained a party for disturbing the peace of another. (Id. at pp. 9, 13.) It explained, "[w]e do not interpret Nadkarni and its progeny to hold a restraining order may issue based on any act that upsets the petitioning party. The DVPA was not enacted to address all disputes between former couples, or to create an alternative forum for resolution of every dispute between such individuals." (Id. at p. 13.)
We agree a restraining order should not issue based on just any act that subjectively upsets a child. In considering the totality of the circumstances, the court must be allowed to consider as a baseline whether the parent engaged in some inappropriate behavior directed at impacting the child's mental or emotional state. In other words, before conduct can be labeled abuse, the court should have discretion to evaluate whether the parent likely acted with some negative purpose related to the child's peace of mind as opposed to acting on a legitimate parenting concern.
The lower court was on the right track in looking to whether its holding was consistent with the culpability analysis of In re Marriage of G. In that case, a wife appealed the family court's denial of her DVRO arguing the court erred in finding that the injuries she suffered during a physical confrontation with her husband did not constitute "abuse" within the meaning of section 6203 because she instigated the confrontation and her husband acted in self-defense. (In re Marriage of G., supra, 11 Cal.App.5th at p. 775.) A panel of this court commented that, "Stripped of its gloss, her argument effectively urges us to reject any concept of reasonable self-defense in interpreting and applying the Domestic Violence Prevention Act. The language of the statute coupled with long-standing and fundamental principles of responsibility and culpability preclude us from doing so." (Id. at p. 779.) We have no doubt A.F. would distinguish this case on several grounds and argue we relied more heavily on the fact that section 6305, which addresses mutual restraining orders, does reference self-defense. Nonetheless, in affirming the order, we applied to the DVPA more broadly the conclusion that "The clear purpose of this requirement is to avoid restraining a party who is not culpable." (Ibid.) We likewise conclude here that, although section 6320, subdivision (a) does not include an express intent requirement, "long-standing and fundamental principles of responsibility and culpability" preclude us from concluding this section does not require any consideration whatsoever of the parent's motivation or the parenting challenge presented.
Another case from a panel in this division supports this interpretation. In S.M. v. E.P. (2010) 184 Cal.App.4th 1249 (S.M.), we reversed a lower court's entry of a restraining order, concluding "neither the trial court's findings, nor the evidence in the record, establish[ed] that S.M. engaged in conduct that placed E.P. in reasonable fear of serious bodily injury or that he engaged in a type of behavior identified in section 6320." (Id. at pp. 1265, 1269.) We concluded the restraining order was premised on the father's "badgering" behavior and that the evidence showed his "badgering involved his refusal to give [the mother] permission to take [the child] to Iowa without her signing a stipulation that she would return with the child, and/or his refusal to agree to let [the mother] take [the child] out of the house that morning." (Id. at p. 1266.) We further noted that the fact that the father "may have been forceful in his refusal" did not lead the court to conclude he engaged in abusive conduct, and we found no evidence in the record that such conduct occurred. (Ibid.)
The facts of this case indicate the reviewing court looked at the rationale for the father's conduct in addition to the mother's reaction. It appears the goal of father's conduct was to prevent his child from being permanently removed from the state, not to negatively impact the mother's mental state. Although he may have been "forceful" and even "badgering," his conduct was not directed at disturbing her calm or harassing her within the meaning of section 6320. The lower court also did not find his conduct altogether inappropriate, noting that he was" 'understandably agitated'" in court and that his concern about losing contact with his child was" 'certainly commendable.'" (S.M., supra, 184 Cal.App.4th at p. 1266.) In considering the totality of these circumstances, we found the evidence insufficient to support a finding of abuse.
Application of such limited guardrails logically also dovetails with the language of the relevant DVPA provisions. The only statutory definitions of abuse that do not contain express provisions requiring that the behavior either be unreasonable or be done "intentionally or recklessly" are section 6203, subdivision (a)(2) (sexual assault), and section 6320, subdivision (a). Almost all the conduct described in these sections is obviously inappropriate and directed at negatively impacting a target person (e.g. sexual assault, molesting, attacking, stalking, threatening, credibly impersonating [Pen. Code § 528.5], falsely personating [Pen. Code § 529], harassing, making annoying telephone calls, destroying personal property). The remainder are only logically abusive if they are directed at negatively impacting a target individual physically or mentally (e.g. striking, battering, telephoning, contacting, or disturbing the peace).
Once again, this subdivision allows the court to enjoin an individual from "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party ...." (§ 6320, subd. (a).)
Our review of cases finding that the enjoined party disturbed the protected party's peace supports this interpretation. In Nadkarni, a woman alleged her former husband accessed her confidential emails, attached several to court documents in their custody battle, and stated that he would disclose additional information in future legal proceedings. (Nadkarni, supra, 173 Cal.App.4th at pp. 1488-1489.) He also used the information to subpoena records of third parties and to find out what social events she would be attending. (Id. at p. 1490.) Because he had physically abused her in the past, she feared for her safety when she learned he had told other people he knew her schedule. (Id. at pp. 1496-1497.) Assuming without deciding the truth of her allegations, the appellate court concluded his conduct, coupled with her claim that "his conduct caused her to suffer 'shock' and 'embarrassment,' to fear the destruction of her 'business relationships,' and to fear for her safety" were facially sufficient to constitute" 'disturbing the peace of the other party.'" (Id. at pp. 1498-1499.)
In Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, the children's father physically abused the children and "taunted Perez by sending her texts after the child abuse charges against him were dismissed, telling her that 'children pay the consequences,' which caused Perez 'a lot of fear.'" (Id. at pp. 400-401.) The appellate court concluded the evidence that his conduct destroyed Perez's emotional calm and made her fear for her safety and the safety of her children should have been considered by the lower court in ruling on her application for renewal of a DVRO. (Id. at p. 401.)
The court in N.T. v. H.T. (2019) 34 Cal.App.5th 595, described a husband's acts in violation of a restraining order for, among other things, disturbing his wife's peace "by continuing to seek reconciliation, verbally attacking her, and threatening her regarding visitation and custody" as "obvious breaches of [wife's] peace" justifying a DVRO. (Id. at pp. 602-603.)
In Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, a woman testified that her former romantic partner enrolled in her college classes, insisted on monitoring her on an open telephone line, threatened to physically harm her, played with a knife close to her face, drove erratically on the way to the hospital while she was experiencing abdominal pain during pregnancy, and took her telephone away so she could not call for help. (Id. at pp. 818-819.) The reviewing court determined the "acts of isolation, control, and threats were sufficient to demonstrate the destruction of Rodriguez's mental and emotional calm," particularly given that the acts continued despite Menjivar's knowledge of the adverse consequences to Rodriguez's health and pregnancy. (Id. at p. 822.)
Finally, in Altafulla v. Ervin (2015) 238 Cal.App.4th 571, the court stated that an ex-boyfriend's act of sharing information about his exgirlfriend's affair with coworkers, relatives, and friends "no doubt was calculated to cause . . . [her] grave emotional distress" and that statements he made to her children "were similarly calculated to and did in fact cause significant emotional distress to both." (Id. at pp. 579-580, italics added.)
What all these cases have in common is that the behavior of the abusers was directed at negatively impacting a target person's mental or emotional state. And while we need not go so far as to insist such a finding is a requirement in all DVRO cases, when a parent claims to be attempting to parent, or even discipline, a child, we conclude a finding of abuse requires some evidence the parent's conduct went beyond reasonable parental discipline and demonstrated a calculated effort to destroy the child's mental or emotional calm.
As a result, we reject A.F.'s interpretation of section 6320, which suggests that any intentional act can be abusive regardless of whether it is focused on anyone in particular and regardless of why it is undertaken. Such an interpretation is too broad. A.F. argues the Nadkarni court "did not require he intended to disturb [his former wife's] peace, just that his intentional acts accomplished that result." While it is true the Nadkarni court did not expressly require a showing that the former husband intended to abuse his former partner, the conduct the court found objectionable did not involve just any intentional acts. They were all focused on his ex-wife specifically and they were targeted to elicit a negative emotional response. (Nadkarni, supra, 173 Cal.App.4th at pp. 1488-1489.) Furthermore, unlike in the instant case, the circumstances did not support a finding that the husband had another legitimate purpose for acting as he did and unwittingly negatively impacted his wife's mental state. Moreover, to state the obvious, this case did not involve the very unique circumstances presented by a parent-child relationship. Thus, its applicability goes only so far.
We turn now to the facts of the case before us. Because we conclude the lower court erred to the extent it required A.F. to show that her reaction was objectively reasonable, we consider whether the error was prejudicial." 'When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.'" (In re Christopher L. (2022) 12 Cal.5th 1063, 1073; People v. Watson (1956) 46 Cal.2d 818, 835.)
Here, even if the court had not considered the reasonableness of A.F.'s response to Father's words and discipline, based on its conclusions regarding Father's conduct, we do not believe there is a reasonable probability the court would have granted the DVRO. A restraining order effectively tells the restrained individual to stop engaging in some behavior. The court here found that Father was engaged in parenting A.F. and that he, in some instances, utilized reasonable parental discipline. On these facts, the court would not have told Father to stop parenting even though it frustrated and upset his child.
In other words, given that we already concluded the court did not abuse its discretion in finding Father was focused on parenting A.F., and given that the court found his parenting behavior was not abusive, we do not read the DVPA as so limitless as to allow that Father's behavior nonetheless becomes abusive solely because A.F. subjectively felt her peace was disturbed. The record does not contain substantial evidence that Father's actions were directed at negatively impacting A.F.'s peace. As A.F. acknowledges in her reply brief, whether it was due to PTSD or some other psychological malady, she was "unusually susceptible to emotional harm" and "particularly sensitive to having her peace disturbed." But A.F.'s counsel also acknowledged during closing arguments that there was no evidence Father knew about A.F.'s PTSD diagnosis. A.F. also has not directed us to substantial evidence in the record demonstrating he knew A.F. experienced lasting effects from an early childhood trauma or any other psychological malady. Thus, even if we take out the "reasonableness" language, the point the lower court rightly highlighted is that Father's actions were directed at parenting a disobedient and unruly child, not at negatively impacting A.F.'s emotional state. Evidence of the requisite nexus is lacking.
A.F. argues for the first time on appeal that the purpose of spanking is to cause pain and humiliation, with the implication being this was Father's intention. However, she does not provide any citations to law, facts, or expert testimony in the record demonstrating that this argument was presented to the court below. Nor does she cite to any evidence in the record supporting the rather significant presumption she makes that this was Father's intent. We, therefore, decline to consider it. (Meridian, supra, 67 Cal.App.5th at p. 704; see also Ernst v. Searle (1933) 218 Cal. 233, 240-241 ["A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant"].)
The fact that all but the last two incidents occurred at least a year apart-particularly given that A.F. and Father apparently had many uneventful visits in the intervening time-also supports the conclusion that Father's actions were directed to parenting when A.F. was unruly as opposed to a campaign to destroy her mental state. Although only one incident of abuse is necessary to support a DVRO, we are unaware of any cases finding a disturbance of peace based on such unique and infrequent circumstances.
We reach the same conclusion regarding the last incident on March 21, 2021. In her reply brief, A.F. states, "[Father] unilaterally changed the visitation arrangement to manipulate his issues with his exwife." (Italics added.) In other words, to the extent A.F. alleges Father was being intentionally manipulative, she acknowledges his behavior was directed at Mother, not A.F. As the court explained, "[t]he recording of [A.F.] from that evening reflects her genuine distress. But if [A.F.'s] peace was disturbed that night, it was not due to abuse by Father. Father was not deliberately or recklessly trying to drive [A.F.] crazy, question reality or send her into a frenzy. He just was not being a very sensitive parent or effective coparent that night." Thus, although Father's actions may have disturbed A.F., they were not directed at destroying her emotional calm, so we cannot say they justified restraining Father. Accordingly, we conclude the error was not prejudicial.
To the extent A.F. implies Father intentionally disturbed her peace (e.g. by arguing Father's "manipulation of A.F. establishes abuse" and that Father "set up A.F. to require her to negotiate her release"), the court found A.F. not credible and Father credible in their descriptions of the March 21, 2021 incident. It further rejected A.F.'s argument at the hearing that Father was "gaslighting" A.F., which the court defined as "a form of psychological manipulation where, by sowing doubt and confusion in someone's mind, they come to question their own judgment and intuition, and indeed, to question reality." As previously noted, we do not reweigh credibility findings on appeal, and we defer to the trial court's credibility findings when supported by substantial evidence. (Niko, supra, 144 Cal.App.4th at 364-365.) A.F. does not specifically challenge the gaslighting finding, and we conclude the record contains substantial evidence supporting the court's conclusion.
DISPOSITION
The order is affirmed. Father is entitled to his costs on appeal.
I CONCUR: O'ROURKE, J. I CONCUR IN THE RESULT: DO, J.