A.G. v. C.S.

Filed 4/27/16
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

A.G., C074211

Plaintiff and Respondent, (Super. Ct. No. 12 FL03455)

v.

C.S.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Peter J.
McBrien, Judge. Affirmed.

Family Violence Appellate Project, Erin C. Smith, Nancy Lemon, Jennafer
Dorfman Wagner; Morrison & Foerster, Sylvia Rivera, and Hanna Abrams for Defendant
and Appellant.

Hughes Law Group and Marc L. Hughes for Plaintiff and Respondent.

C.S. (Mother) appeals from an order awarding sole custody of her children to A.G.
(Father). Mother contends the trial court erred by (1) not basing its order on the

1
children’s best interests; (2) committing prejudicial evidentiary rulings; (3) denying
Mother’s request during trial for a continuance to obtain counsel; and (4) committing
separate errors that constituted cumulative error.
We disagree with Mother’s contentions and affirm the order. As part of our
decision, we also conclude the doctrine of implied findings applies in this case where the
parties did not request a statement of decision, the court did not prepare one, and the
settled statement used by the parties does not contain an express statement by the trial
court that it complied with the procedures required for adopting a statement of decision
and that the settled statement serves as the court’s statement of decision.
FACTS AND CASE HISTORY
This discussion is based on the clerk’s transcript and the settled statement Mother
submitted in lieu of a reporter’s transcript.
1. Father petitions for custody, and Mother requests a restraining order
Father and Mother cohabitated from 2004 until May 2012. They have three minor
sons: G. (born 2004), A. (born 2006), and I. (born 2008).
On May 17, 2012, Mother and the boys left Father’s home and went to a domestic
violence shelter in Marin County.
Father petitioned the trial court for sole legal and physical custody of the children.
He alleged that Mother, among other things, was unstable, and she had unilaterally
removed the children from their school and speech therapy classes.
Mother filed a request for a restraining order against Father under the Domestic
Violence Prevention Act (Fam. Code, § 6200 et seq.). She alleged Father sexually,
emotionally, verbally and mentally abused her and emotionally and mentally abused the
children. Specifically, Mother alleged Father has a criminal record, owns a handgun, and
is an alcoholic. His smoking in the house caused her son to have asthma attacks. He
constantly threatened to throw her out of the house and she would never see her children
again. He controlled her and denied her of food. He sexually abused her by forcing her

2
to remove her panties to show she had not had sex with anyone. He photographed her
while she was in the shower without her permission. He forced her to make sex videos
with him with which he would blackmail her. Father had served prison time for drug
possession, and had threatened to take the children away from her and go to Mexico, his
home country.
As for physical abuse, Mother alleged Father’s girlfriend smashed her arm in a
window and pushed her against a wall. Father told Mother not to hit the girlfriend back,
or else he would kick her out of the house. Mother also alleged Father physically abused
the children with a belt and verbally threatened one of the sons. Father hit two of his
sons with a belt for not feeding the pets.
The trial court denied Mother’s request for a temporary restraining order, and set
the matter for a hearing. The court found Mother did not provide facts that described “in
sufficient detail the most recent incidents of abuse, such as what happened, the dates,
who did what to whom, or any injuries or history of abuse.” However, the court granted
mother temporary legal and physical custody of the children, and it denied Father any
visitation, although, as noted below, father did participate in supervised visitation at some
point. The court later amended its order to include a stay-away order.
2. Hearing on long-term restraining order
The court convened a hearing on August 23, 2012, to determine whether to issue a
long-term restraining order. Father was represented by counsel; Mother appeared in
propria persona. The court instructed Mother that the hearing was an opportunity for her
to provide evidence in support of her request for injunctive relief. Mother stated Father
was an alcoholic and had been convicted of driving under the influence. She repeated her
allegation that Father was a chronic smoker and his smoking inside the house had caused
their son to have an asthma attack.
The court asked Mother to provide evidence of specific acts, not just conclusions.
Mother stated she desired a restraining order because Father was “mostly controlling.”

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On Mother’s Day 2012, she and the children went to visit her parents, promising Father
she would return home by noon. Father subsequently called her that afternoon when she
had not returned. He was angry with her. Also, in 2009, there was an incident where
Father grabbed her neck with both hands, and the oldest son witnessed the incident.
Mother offered no additional testimony of any kind of abuse in support of her allegations.
On cross-examination, Mother admitted knowing that Father had previously been
in an accident that injured his shoulder and removed significant muscle tissue from that
area. She also admitted being convicted in 2006 of embezzlement, in violation of Penal
Code section 503.
Mother’s father, E.G., testified in support of Mother. He stated he obtained a
separate restraining order against Father due to his and his girlfriend’s phone calls and
visits when they were looking for the boys after Mother’s most recent disappearance.
The court stated this evidence was not relevant to determining whether Father had abused
Mother.
E.G. testified that when Father and Mother lived together, he often had to drive
from his home in San Bruno to Sacramento to pick up Mother and the boys, as Father
would not drive Mother to visit her parents. E.G. also discussed the Mother’s Day 2012
incident. He had to rush Mother and the boys back to Sacramento. E.G. had no personal
knowledge of the way Father treated the boys.
A neighbor of Father and Mother, Alvia Chavez, testified in support of Mother.
She stated that in 2007, when she and Mother went to interview for a job, Father called
while they were waiting for an interview. The “speakerphone” feature was on, and she
heard Father curse at Mother.
On some occasions when Mother would visit Chavez’s home, Father would peer
though Chavez’s window to see if Mother was inside. He would also drive by in front of
her home several times to check on Mother, making a u-turn on the street to do so. He
would also send one of the sons to look for Mother and tell her to return home.

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 Occasionally, when Chavez drove by Father and Mother’s home while Mother
was at work, the children were outside barefoot. However, Chavez had never witnessed
Father mistreating Mother.
Based on this evidence, the trial court denied Mother’s request for injunctive
relief. It ruled Mother was unable to establish a specific, credible incident of abuse, and,
accordingly, there was insufficient evidence to sustain a domestic violence restraining
order.
3. Hearing on custody
On November 8, 2012, the court convened a trial on custody and visitation. The
evidence presented a complicated relationship between the parties.
Mother had been married before and had two daughters from that union. In 2003,
she agreed her husband could have full custody of their children. At that time, her
husband declared Mother suffered from mental instability and had claimed he had
molested their daughters. She at one time had allowed their three-year-old daughter to
escape into the street unsupervised. Mother did not see her daughters for six years and
never introduced them to Father. She claimed she does not speak with her daughters
because her ex-husband’s new wife does not allow it.
Father was controlling. He would not permit Mother to attend school or to work.
Mother testified that in 2009, Father pushed her into a corner during an argument and
began strangling her. The couple’s oldest son saw the incident. Father, however, had
previously been in a motorcycle accident and was missing muscle from the back of his
shoulder. He testified that as a result of the accident, he is no longer able to lift one of his
arms. Mother acknowledged Father could not lift his right arm above his shoulder due to
a motorcycle accident.
Father claimed Mother often let their sons run around in the street while she was
on the phone. On June 26, 2010, one son was hit by a car while he was bicycling in the

5
street in front of their home. Mother testified she was watching the children at the time
and Father was not present.
In July 2010, Mother left with the children and went to live at her parents’ home.
Mother would not let Father speak with the children for over a month. He began to see
them on weekends beginning in September 2010. Father testified he did not know why
Mother left, but Mother testified she left because Father was coming home at 2:00 to 3:00
a.m. and they were fighting often.
In January 2011, Mother asked Father if she and the children could return and live
with Father. Father was then in a relationship with another woman, Monica Valerio.
However, he allowed Mother to return for six months so she could find a job, get a
driver’s license, and find an apartment. The two signed an agreement dated January 3,
2011, that stated Father would have sole custody of the children until Mother was
financially settled and had her own apartment. Father testified he did not force Mother to
sign the agreement, but Mother testified she signed the agreement because Father would
not let her live in the house unless she signed it.
By July 2011, Mother had not found herself a job or an apartment. She moved out
of Father’s house and moved in with her boyfriend two blocks away. The children
remained with Father.
About one month later, Mother moved back in with Father. Her boyfriend had
told her to leave. By then, Valerio, Father’s girlfriend, was living with Father. When
Mother moved back in, she agreed to help Valerio with anything that needed to be done
in the home, including cooking at night, helping take care of Valerio’s children along
with her own, and cleaning the house. She agreed to pay attention to the children and not
be on the phone all day.
The parties disputed over how well Mother kept her agreement. Valerio testified
she and Mother took turns cooking and cleaning, but Valerio did the majority of the
work. She woke up the children in the morning to feed them because Mother stayed in

6
bed. Valerio testified Mother was always on her phone and did not watch her children
when they were playing outside. Mother also would leave the house without telling
Valerio and would leave the children behind.
Father’s brother, G.G., also lived in Father’s house during 2011 and 2012. His
observations of Mother were consistent with Valerio’s. Sometimes he would have to
feed the children because Mother would sleep late.
Mother disputed Valerio and G.G.’s observations. She denied that she slept in.
She and the boys shared a room, and it would have been impossible for her to sleep in
when the boys were getting up and preparing for school. Mother and Valerio shared
household duties, and she would watch Valerio’s children when Valerio was at work or
out with Father. Mother denied leaving the children at home without letting Valerio
know she was leaving.
The parties disagreed over how Father disciplined the boys. Father claimed he
disciplined the boys by putting them in their room or taking a toy away. Valerio claimed
Father disciplined the boys by giving them chores; he never hit them. Mother testified
Father disciplined the boys by hitting them. She would discipline them by taking a toy
away or having them sit in a corner for 10 minutes.
Father did not attend the boys’ doctor’s appointments or meetings at their school
nor did he throw birthday parties for the boys, because, G.G. claimed, Father worked
more than one job. Mother was the person who always attended those activities.
Father testified that Mother suffered from mood swings, that she was on
prescription medication, and that she may have “mental issues.” Mother testified she was
not taking antidepressants. She had taken Prozac for a few months in 2003 at the end of
her marriage. The court, after observing Mother throughout the proceedings, asked her,
“Are you on any medication today? The Court is concerned.” Mother replied, “No your
Honor. I’m not on medication; I’m just fighting for my boys.”

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 On May 13, 2012, Mother’s Day, Mother and the children went to her parent’s
home. Father called her. She answered the phone and became very upset. Father was
angry she had not returned.
On May 17, 2012, Mother’s sister, Theresa Padilla, picked up Mother and the boys
from Father’s home and drove them to a domestic violence shelter in Marin County.
Father learned that night that Mother and the boys were gone. He telephoned police, but
they were of no assistance. He was worried about the boys because Mother had no
income and he did not know where they were. He posted flyers in his neighborhood and
in Mother’s parents’ neighborhood in an effort to find them. He repeatedly called
Mother’s family because of his concern. When Mother’s father finally answered the
phone, Father asked him if he was concerned about his grandchildren. Grandfather E.G.
replied that he was not worried about them. No one ever informed Father that the boys
were safe after she left. Mother also did not inform law enforcement or file a “good
cause” report with the Marin County District Attorney when she took the children. She
went to a shelter in Marin County instead of Sacramento County because it was nice and
other shelters were unavailable.
After a break in her testimony, Mother requested a continuance to seek
representation. The trial court denied the request, stating she should have made the
request before the trial began.
Two other witnesses testified at trial. The first was Stephanie Stilley, a social
worker who provided supervision during visits in custody situations. She was present
when Father had supervised visits with the children during the time the restraining order
was in place. She testified the visits were fine. There was nothing to indicate the
children were afraid of Father. They hugged him when they saw him, and he was playful
with them.
The second additional witness was Alecia Allison, a Family Court Services
mediator. Allison reviewed documents and interviewed Father, Mother, and the children,

8
and reported her findings to the court. Allison searched criminal records, and she found
no criminal history for Mother. She found Father was convicted of driving under the
influence (Veh. Code, § 23152, subd. (b)) with priors in 1998, and was sentenced to 36
months of probation and 12 months of jail. He was convicted of the same offense in
2010 and was sentenced to three years of probation and two days of jail. His driver’s
license was suspended or revoked.
Mother told Allison that Father was abusive toward her and the children on many
occasions. She claimed she was forced to sign the January 2011 agreement giving
custody to Father. She moved in with Father only because he refused to allow her to take
the children and threatened that he would take the children to Mexico. Mother alleged
Father abused alcohol, as he drank before and after work. She also alleged Father
transported the children while he did not have a valid driver’s license.
Father told Allison that Mother had a history of leaving with the children without
his knowledge or consent. He denied abusing the children except for spanking the oldest
child one year earlier. He drank approximately four to five beers three to four days a
week. He believed Mother was not financially able to care for the children. He also
expressed concern that Mother was not able to ensure the children were safe.
Allison interviewed the two oldest children. Both children said they wanted to be
in Mother’s care. They feared Father. Father had spanked them, and one disclosed
marks after Father spanked him.
Alison also contacted Child Protective Services (CPS). The family was referred to
CPS after Mother left with the children in 2012. CPS deemed allegations of emotional
abuse by Father inconclusive. The children informed the social worker they feared
Father and did not want to see him due to prior incidents of him hitting them. CPS closed
the investigation as inconclusive, as the social worker was unable to speak with Father,
and the evidence lacked corroboration from any outside agency, such as law enforcement
and their records.

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 Based on her investigation, Allison concluded it was in the children’s best interest
to remain in Mother’s primary care, for Father to have supervised visitation, and for the
children to participate in counseling. She based her recommendation primarily on the
children’s expression of fear towards Father and the lack of safety concerns while the
children were in Mother’s care. Allison made her recommendations “on an interim basis
to err on the side of caution with the intent to have the matter reassessed” after the
children had participated in counseling.
At trial, Allison stated she reached no conclusion as to whether Father had abused
Mother.
4. Court’s ruling on custody
The trial court adopted the parties’ January 2011 agreement giving sole custody to
Father as its order, and it ordered Mother to return the children to Father. The settled
statement quotes the clerk’s minute order from trial, which was signed by the judge, as
the trial court’s ruling. The quoted order reads in relevant part as follows:
“ ‘Mother has a history of running away with the children (five times) and most
recently May 17, 2012. On 8/23/2012 the Court found insufficient evidence was
presented by Respondent Mother to issue a restraining order. Respondent Mother went to
Marin County with the children and chose not to disclose location. On January 3, 2011
the parties entered into a written agreement giving custody to Father. The January 3,
2011 stipulation is confirmed as a court order. The parties are referred to the Office of
Family Court Services and the matter is continued to January 7, 2013 at 9:00 a.m. for
review of the Family Court Services’ report.’
“ ‘The children are to be returned to Sacramento County within 15 days. Mother
has taken the children under claim of domestic violence but at trial was unable to prove
(those allegations).’

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 “ ‘Mother has previously been diagnosed as depressed and been prescribed a
prescription. Throughout this trial, Mother acted in a very abnormal manner and may be
depressed at this time.’
“ ‘This order affects the children who are to be returned and law enforcement may
assist.’
“ ‘Mother signed up with the “safe home” via the Secretary of State and refused
the Court’s request for her address.’
“ ‘Mother Respondent is unwilling to share custody and this fact alone concerns
the Court as to Respondent Mother’s ability to have custody.’ ”
Neither party requested, nor did the court prepare, a statement of decision.
5. Subsequent investigation and hearing
Nearly eight weeks after the trial, Family Court Services mediator Allison
submitted another report to the trial court. She had interviewed the parties and the
children, and she concluded the trial court’s order awarding custody to Father “is
appropriate as there is no information indicating the children are unsafe while in the care
of father despite prior statements made by the children to this writer.”
Mother alleged Father was physically abusing the children. She told Allison the
children had had bruises or marks on them and she questioned how the injuries occurred.
The children were also wearing dirty and tattered clothing.
Mother’s allegations of abuse prompted an investigation by CPS. The
investigating social worker interviewed the children, and they did not disclose any safety
concerns. The social worker also did not observe any. The social worker informed
Allison she found no evidence of abuse.
Father told Allison he had allowed Mother to visit the children on weekends
despite the lack of a court order on visitation. One weekend, he did not allow contact
“after a failed attempt to address inappropriate language/denigrating racial comments the
children stated were shared by mother.” Father also expressed concern that Mother’s

11
mental health concerns had not been addressed. Allison recommended Mother continue
to have parenting time with the children on weekends, and that she and the children
participate in counseling with a mental health provider.
At the January 7, 2013, hearing, the trial court adopted Allison’s recommendation.
The court also asked Mother whether she could transfer her employment and move back
to Sacramento. Mother stated she might be able to transfer if she had more seniority.
The court indicated the parties could return to Family Court Services if or when Mother
moved back to Sacramento.
6. This appeal
Mother timely appealed from the court’s order. She contends the trial court erred
as follows:
1. The court abused its discretion by not basing its custody decision on the
children’s best interests. It did this by (a) failing to consider the mandatory factors listed
in Family Code section 3011; (b) improperly penalizing Mother for moving to Marin
County in order to escape her abuser; and (c) basing its decision on improper conclusions
about Mother’s mental state without any evidentiary basis;
2. The court committed prejudicial evidentiary rulings;
3. The court abused its discretion when it denied Mother’s request for a
continuance to obtain counsel; and
4. The court’s separate errors constituted cumulative error that denied Mother a
fair hearing.
DISCUSSION
I
Standard of Review
Before ruling on the merits, we must determine whether the doctrine of implied
findings applies where the parties did not request a statement of decision but rely upon a

12
settled statement. Our determination of that issue establishes the scope of our review.
We conclude the doctrine applies.
“The standard of appellate review of custody and visitation orders is the
deferential abuse of discretion test. (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 208.) The
precise measure is whether the trial court could have reasonably concluded that the order
in question advanced the ‘best interest’ of the child. We are required to uphold the ruling
if it is correct on any basis, regardless of whether such basis was actually invoked.
(Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)” (In re Marriage of Burgess
(1996) 13 Cal.4th 25, 32.)
“ ‘A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics.)
This appeal’s record consists of a clerk’s transcript and a settled statement in lieu
of a reporter’s transcript. The parties did not request a statement of decision, and the trial
court did not issue one. Generally, “[u]nder the doctrine of ‘implied findings,’ when
parties waive a statement of decision expressly or by not requesting one in a timely
manner, appellate courts reviewing the appealed judgment must presume the trial court
made all factual findings necessary to support the judgment for which there is substantial
evidence. [Citations.]” (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 550, fn.
11.)
Some appellate districts have held the doctrine of implied findings does not apply
where a statement of decision is waived, a settled statement is used in place of a
reporter’s transcript, and the settled statement contains the court’s decision and the
judge’s factual and legal basis for the decision. These districts held that in such cases, the
doctrine of implied findings will not apply and the reviewing court will not presume the

13
existence of necessary factual findings. (See In re Marriage of Condon, supra, 62
Cal.App.4th at p. 550, fn. 11; In re Marriage of Seaman & Menjou (1991) 1 Cal.App.4th
1489, 1494, fn. 3; In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1580.)
Another appellate district has joined with legal commentators to refuse to
acknowledge an exception to the implied findings doctrine when the parties do not
request a statement of decision. In In re Marriage of McHugh (2014) 231 Cal.App.4th
1238, the Court of Appeal wrote: “[A]lthough the foregoing cases seek to create an
exception to the implied findings doctrine, several respected treatises explain, ‘The
apparent consensus is that appellant’s express or implied waiver of a statement of
decision on the appealed issues unequivocally invokes the doctrine of “implied
findings.” ’ (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group
2014) ¶ 15:103, pp. 15-23 to 15-24 (rev. # 1, 2012), original italics; see Eisenberg et al.,
Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 8:24, pp. 8-13
to 8-14; Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2014)
¶ 9:267, pp. 9-73 to 9-74.) We therefore follow the general rule and apply the implied
findings doctrine.” (In re Marriage of McHugh, supra, 231 Cal.App.4th at p. 1249,
original italics.)
We, too, follow the general rule, and conclude the use of a settled statement in lieu
of a reporter’s transcript does not negate the doctrine of implied findings where the
parties waived a statement of decision. A settled statement is “a condensed narrative of
the oral proceedings that the appellant believes are necessary for the appeal.” (Cal. Rules
of Court, rule 8.137(b)(1).) As a summarized narrative of what was said, a settled
statement may not capture the judge’s complete analysis of an issue of fact or law, even if
the judge ruled from the bench. Here, the part of the settled statement Mother claims
contains the court’s factual and legal basis for its ruling is actually a quotation from the
trial minute order likely prepared by the court clerk and signed by the judge. It is not a
copy of the trial court’s final, written presentation of its factual and legal reasoning.

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 A statement of decision, on the other hand, provides a complete record of the
court’s reasoning. It goes beyond memorializing only a condensed narrative of the oral
proceedings. “The purpose of the statement is to provide an explanation of the factual
and legal basis for the court’s decision.” (Onofrio v. Rice (1997) 55 Cal.App.4th 413,
425.) A statement of decision gives the trial court “an opportunity to place upon [the]
record, in definite written form, its view of the facts and the law of the case, and to make
the case easily reviewable on appeal by exhibiting the exact grounds upon which
judgment rests.” (Whittington v. McKinney (1991) 234 Cal.App.3d 123, 127, some
original italics, some added italics.) “If a statement of decision is given, it provides us
with the trial court’s reasoning on disputed issues and ‘is our touchstone to determine
whether or not the trial court’s decision is supported by the facts and the law.’ (Slavin v.
Borinstein (1994) 25 Cal.App.4th 713, 718.)” (In re Marriage of Starr (2010) 189
Cal.App.4th 277, 287.)
“[A] statement of decision is a formal legal document containing the factual and
legal basis for the court’s decision on each principal controverted issue for which a
statement is requested. Because of the significant legal effect of a statement of decision,
Code of Civil Procedure section 632 and California Rules of Court, rule [3.1590], provide
a highly detailed process by which counsel for the litigants can provide input into and
affect the final content and language of the statement of decision, so that the appellate
court has before it the factual and legal basis for the trial court’s determination of the
issues being reviewed on appeal.” (In re Marriage of Buser (1987) 190 Cal.App.3d 639,
642-643.)
As a “condensed narrative of the oral proceedings,” a settled statement does not
guarantee the reviewing court has before it the factual and legal basis for the trial court’s
determination. Even if we could conceive of an exception where the trial court expressly
states in the settled statement that it has complied with procedures required for adopting a
statement of decision and the settled statement serves as the court’s statement of decision,

15
the settled statement here does not contain such a judicial guarantee. It includes a brief
description of the oral testimony received over the two hearings. It then contains, in
effect, a copy of the court clerk’s minute order as signed by the judge. There is no
certification that what appears as the court’s order is the court’s complete factual and
legal basis supporting its decision on each principal controverted issue for which a
statement may have been requested and is before us on appeal. Given this omission and
consequent uncertainty, we are not at liberty to ignore the doctrine of implied findings
and reverse the trial court on factual and legal grounds it may have actually considered
but not expressed in writing. We thus apply the doctrine of implied findings as we
review the trial court’s decision.
II
Custody
Mother contends the trial court abused its discretion by not basing its custody
decision on the children’s best interests. Specifically, Mother claims the court erred by
(a) failing to consider the mandatory factors listed in Family Code section 3011;
(b) improperly penalizing Mother for moving to the Marin County shelter and not
moving back to Sacramento County; and (c) basing its decision on its conclusion that
Mother may have been depressed during trial. We conclude the trial court did not abuse
its discretion.
A. Section 3011 factors
“In an initial custody determination, the trial court has ‘the widest discretion to
choose a parenting plan that is in the best interest of the child.’ (Fam. Code, § 3040,
subd. (b).) It must look to all the circumstances bearing on the best interest of the minor
child. (Burchard v. Garay (1986) 42 Cal.3d 531, 534.) Family Code section 3011 lists
specific factors, ‘among others,’ that the trial court must consider in determining the ‘best
interest’ of the child in a proceeding to determine custody and visitation: ‘(a) The health,
safety, and welfare of the child. [¶] (b) Any history of abuse by one parent [against any

16
child of the parent; the other parent; or a parent, current spouse, or cohabitant, of the
parent seeking custody]. [¶] (c) The nature and amount of contact with both parents . . . .
[[¶] and (d) The habitual or continual illegal use of controlled substances, the habitual or
continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled
substances by either parent.]’ ” (In re Marriage of Burgess, supra, 13 Cal.4th at pp. 31-
32, original italics.)
Mother asserts the trial court did not consider (1) Father’s history of alcohol
abuse; (2) Father’s physical abuse of the children; (3) that a restraining order was issued
to protect Mother’s parents from Father; and (4) the nature and amount of contact the
children had with both parents. We conclude the court considered these factors, and to
the extent its findings were not express, we imply them, as substantial evidence in the
record supports them.
1. Allegations of alcohol abuse
The court considered Father’s alleged history of alcohol abuse. Family Court
Services mediator Allison testified Father had received two convictions for driving under
the influence, one in 1998, the other in 2010. Father testified he drank approximately
four to five beers three to four days a week. There was no expert witness testimony
concerning Father’s use of alcohol and whether it constituted “habitual or continual abuse
of alcohol.” (Fam. Code, § 3011, subd. (d).) The court did not seek corroborating
evidence, and Mother did not introduce any. This evidence supports the court’s implied
finding that it considered father’s history of alcohol use.
Family Code section 3011, subdivision (e)(1), requires a court, when it awards
sole or joint custody to a parent against whom allegations of abuse or habitual abuse of
alcohol have been brought to the court’s attention, to “state its reasons in writing or on
the record” for its custody award. Mother contends this directive applied because of her
allegations, and the trial court did not fulfill this requirement. We have already
concluded the court did not prepare a statement of decision, and the settled statement is

17
not the equivalent of a statement of decision. Family Code section 3011 required the
court to set forth a statement of reasons, but a statement of reasons is also not the
equivalent of a statement of decision. (See In re Marriage of Buser, supra, 190
Cal.App.3d at p. 642.) On this record, and for purposes of the Family Code section 3011
requirement only, the settled statement adequately set forth the court’s reasons for
granting father sole custody. The court found there was no evidence of abuse by Father,
Mother had a history of running away, Mother refused to share custody with Father, and
Mother appeared to be mentally unstable. Nothing in Family Code section 3011 defines
what the court’s statement of reasons must contain except that it include the court’s
reasons for the custody award in light of allegations of alcohol abuse. The settled
statement fulfills this requirement.
2. Allegations Father physically abused the children
The court also considered Father’s alleged abuse of the children. “[I]n the context
of a child custody proceeding when allegations of child abuse or neglect arise, before
making a custody determination the court necessarily must determine the veracity of such
allegations to ensure the court is acting in the ‘best interest’ of the child. ([Fam. Code,] §
3011, subd. (b)(1)–(3).)” (Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1514-
1515.) Here, in a separate hearing, the trial court determined the allegations had not been
proven. The court provided Mother an opportunity to introduce all of her evidence of
alleged abuse against herself and the children. Except for stating conclusory accusations,
Mother did not introduce any evidence Father abused the children. At trial on custody,
there was evidence the boys feared Father because he spanked them. However,
government investigators could not find any evidence supporting the accusations. A
social worker found no evidence of abuse. Substantial evidence thus supports the trial
court’s implied finding that it considered the allegations of abuse against the children and
found them wanting.

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 3. Restraining order
The court considered a restraining order had been issued against Father to protect
Mother’s parents. The court stated it was not relevant for determining whether Father
had abused Mother. Nonetheless, it was relevant for determining the best interests of the
children. Substantial evidence supported the court’s not placing great weight on the
point, as there was no evidence Father ever abused either of Mother’s parents or that he
violated the restraining order. He pestered them with phone calls once Mother left with
the children because they refused to disclose where his children were.
4. Contact with parents
Finally, the court considered the nature and amount of contact the children had
with each parent. Both parents raised the children until 2010, when Mother left and took
the children with her to her parents’ home. Mother returned in 2011 and agreed to Father
having sole custody of the children. Later that year, Mother left again, this time without
her children, to live with her boyfriend. She returned after the boyfriend forced her out.
She and Valerio took care of the children while Father worked to provide for the
household. Mother left again in May 2012 and took the children with her to the Marin
County shelter without disclosing to Father the children’s location or condition. It is
obvious the trial court considered this history of the parents’ contact with the children, as
it specifically mentioned in the settled statement Mother’s history of leaving Father as
one of the grounds for its custody order.
We find the trial court considered all of the factors mandated by Family Code
section 3011 when it granted custody to Father.
B. Effect of Mother’s move to Marin County
Mother contends the trial court abused its discretion to the extent it denied Mother
custody because it was attempting to coerce Mother to move back to Sacramento County.
We see no basis to suggest the court was “attempting to coerce [Mother] to move back to

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Sacramento County.” The court’s interest was to determine the best interest of the
children, and the court could reasonably believe the distance between the two parents’
homes was a factor worth considering. The court could also reasonably consider that
Mother left Father and, with the children, went to a shelter in a distant county without
disclosing their location. One of the factors the court had to consider was which parent
was more likely to allow the children to have frequent and continuing contact with the
noncustodial parent. (Fam. Code, § 2040, subd. (a)(1).) Mother’s actions and history of
leaving Father, where the court found insufficient evidence of abuse, were points to
consider in determining the children’s best interest. These points had nothing to do with
any perceived attempt to coerce Mother to return to Sacramento. They had much to do
with determining which parent should have primary custody.
C. Mother’s mental state
Mother contends the trial court’s speculation that she may have been depressed
was an insufficient basis for denying her custody. “[I]t is the policy of this state that the
existence of a disability does not permit a court to presume detriment.” (In re Marriage
of Heath (2004) 122 Cal.App.4th 444, 450.) Mother contends the trial court has
wrongfully presumed the children’s best interests are not met by being with her due to
her possible depression, a presumption made without any expert testimony as to Mother’s
actual condition or its affect on the children.
We do not dispute that the mere suggestion, or even diagnosis of depression,
without more, is an improper ground on which to base a custody order. Here, Mother
admitted she had been diagnosed with depression and prescribed a medication in 2003,
but she had not taken the medication since then. Father asserted Mother suffered from
mood swings and alleged she had “mental issues.” These facts, standing alone, are an
insufficient ground on which to deny Mother custody. They did not connect Mother’s
mental illness with an inability to care for the children adequately.

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 However, the court’s finding on this point was not made in a vacuum. In addition
to considering the evidence just mentioned, the court witnessed Mother as a pro per party
throughout the hearings, and the court saw something that disturbed it. The court asked
Mother, “Are you on any medication today? The Court is concerned.” In the settled
statement, the court noted, “Throughout this trial, Mother acted in a very abnormal
manner and may be depressed at this time.” The court made no medical diagnosis, but it
saw Mother act and behave in a manner that left the court questioning her ability to share
custody. The court was entitled to rely on this evidence, along with all the other evidence
before it, to award custody to Father. Substantial evidence supports the trial court’s
findings, express and implied, awarding custody to Father.
III
Evidentiary Rulings
Mother contends various evidentiary rulings by the trial court denied her a fair
hearing. Specifically, she claims the court erred when it (1) excluded testimony by
Mother’s neighbor, Alvia Chavez, that Mother appeared at her home in 2009 and told her
Father had just attempted to strangler her; (2) overruled Mother’s objection to Father’s
testimony that Mother was on the phone when their child was hit while riding his bike in
the street; and (3) refused to assist Mother, who appeared in propria persona, to develop
the facts and elicit testimony. We disagree.
A. Refusal to assist Mother
We take up the latter assertion first. Mother faults the trial court for not assisting
her in eliciting oral testimony from her sister, Theresa Padilla. Padilla had prepared a
written statement, but the trial court did not allow her to read it, ruling all testimony must
be in the form of a question and answer. Mother contends the court should have helped
her elicit the testimony. She cites Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284
(Gamet) to assert trial courts have “the responsibility to ensure that when one party is
represented by counsel and the other is not, the playing field is level.”

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 Mother overstates Gamet’s holding. What the appellate court actually wrote was:
“We further note that in propria persona litigants are not entitled to special exemptions
from the California Rules of Court or Code of Civil Procedure. [Citation.] They are,
however, entitled to treatment equal to that of a represented party. Trial judges must
acknowledge that in propria persona litigants often do not have an attorney’s level of
knowledge about the legal system and are more prone to misunderstanding the court's
requirements. When all parties are represented, the judge can depend on the adversary
system to keep everyone on the straight and narrow. When one party is represented and
the other is not, the lawyer, in his or her own client's interests, does not wish to educate
the in propria persona litigant. The judge should monitor to ensure the in propria persona
litigant is not inadvertently misled, either by the represented party or by the court. While
attorneys and judges commonly speak (and often write) in legal shorthand, when an in
propria persona litigant is involved, special care should be used to make sure that verbal
instructions given in court and written notices are clear and understandable by a
layperson. This is the essence of equal and fair treatment, and it is not only important to
serve the ends of justice, but to maintain public confidence in the judicial system.”
(Gamet, supra, 91 Cal.App.4th at p. 1284, italics added.)
The trial court was under no obligation to “level the playing field” by assisting
Mother to elicit testimony. “We recognize the fact that [Mother] is appearing without the
benefit of legal counsel. However, we are unable to ignore rules of procedure just
because we are aware of that fact. ‘When a litigant is appearing in propria persona, [she]
is entitled to the same, but no greater, consideration than other litigants and attorneys
[citations]. Further, the in propria persona litigant is held to the same restrictive rules of
procedure as an attorney [citation].’ [Citations.]” (County of Orange v. Smith (2005) 132
Cal.App.4th 1434, 1444.) There is no evidence Mother received less consideration than
Father or Father’s attorney during the hearings.

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 B. Specific evidentiary rulings
Holding Mother to the same standards of performance as we would an attorney,
we turn to her substantive objections. She claims the court committed two evidentiary
errors. First, she asserts the court erred at the restraining order hearing when it excluded
testimony by neighbor Chavez that Mother appeared at her home in 2009 and told her
Father had just attempted to strangler her. Father objected to this testimony. The court
asked Mother if she wanted to be heard concerning the objection. Mother said, “No.”
The court then sustained the objection.
Before us, Mother contends Chavez’s testimony was admissible over a hearsay
objection as either a prior consistent statement (Evid. Code, §§ 791, subd. (b), 1236), or
as an excited utterance (Evid. Code, § 1240).
Second, Mother asserts the trial court erred when it overruled her objection to part
of Father’s testimony. Father testified that Mother often let the children run around in the
street while she was on the phone. He testified that one of his sons was hit by a car while
bicycling in the street in front of their home. Mother interrupted Father, stating that at the
time she was sweeping the driveway and watching the boys, and Father was at work and
not present when the incident occurred. The trial court instructed Mother that she could
provide her additional testimony on this subject later if she desired to.
Mother argues the trial court erred, and it should have sustained Mother’s
“objection” on the ground that Father’s testimony lacked foundation.
Mother, however, did not raise at trial the arguments against the court’s
evidentiary rulings that she raises here. Because Mother did not raise those arguments at
trial, she has forfeited the right to raise them on appeal. “ ‘[A] party cannot argue the
court erred in failing to conduct an analysis it was not asked to conduct’ (People v.
Partida [(2005)] 37 Cal.4th 428, 435) . . . .” (People v. Thornton (2007) 41 Cal.4th 391,
443 [defendant forfeited arguments challenging trial court’s exclusion of hearsay
evidence where he failed to raise them at trial in opposition to plaintiff’s objections].)

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 IV
Continuance
Mother contends the trial court abused its discretion when it denied her request for
a midtrial continuance in order to obtain counsel. She contends the court’s denial of the
continuance, in light of the fact she was in propria persona, denied her a fair hearing. We
disagree.
If Mother had wanted to hire counsel, she had sufficient time to do so prior to the
hearing. She had 52 days–almost two months–to obtain counsel from the time the
hearing was noticed until it was held. Instead, she waited not just until the day of the
hearing, but until Father had already presented three witnesses and she had finished her
own testimony before seeking a continuance to find counsel. Under these circumstances,
we cannot say the trial court abused its discretion when it denied the request.
V
Cumulative Error
Mother contends the cumulative effect of the court’s alleged errors combined to
deny her a fair hearing. Because we have found no error, and certainly no prejudicial
error, we find no cumulative error. (People v. Hovarter (2008) 44 Cal.4th 983, 1030.)
DISPOSITION
The trial court’s order after hearing, filed February 21, 2013, is affirmed. Costs on
appeal are awarded to Father. (Cal. Rules of Court, rule 8.278(a).)

NICHOLSON , Acting P. J.

We concur:

MAURO , J.

HOCH , J.

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