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In re R.R.

August 30, 2010


APPEAL from an order of the Superior Court of Los Angeles County. James Hahn, Judge. Affirmed. (Los Angeles County Super. Ct. No. CK77975).

The opinion of the court was delivered by: Rubin, J.


This case presents the question of whether a parent in a dependency proceeding who claims he is not abusing drugs thus tenders his past drug use in issue and, as a result, forfeits his patient-physician privilege regarding that drug use. We conclude that under the circumstances of this case the answer is, "Yes," and hold that the juvenile court properly admitted father's medical records at the jurisdiction and disposition hearing. For this and other reasons, we affirm the juvenile court's order.


A. Appellant's Contentions

Appellant Robert B. (father) appeals from the December 4, 2009 order declaring his daughter, R.R., a person described by Welfare and Institutions Code section 300, subdivision (b) based on father's past and current drug use.*fn1 He contends: (1) the trial court erred in denying his motion to quash a subpoena duces tecum which did not comply with the notice requirements of Code of Civil Procedure section 1985.3; (2) it was error to admit into evidence his medical records obtained pursuant to that subpoena; (3) insufficient evidence supported the finding that father's drug use placed R.R. at risk of physical and emotional harm; and (4) it was an abuse of discretion to limit father's contact with R.R.

B. Detention

R.R. was born in December 2001. She first came to the attention of the Department of Children and Family Services (DCFS) in the spring of 2009. At the time, R.R. was living with her mother and half-siblings in Arizona, in the home of mother's male companion, Mark X. The home had no electricity, gas or hot water. A maternal aunt went to Arizona to visit mother; mother's appearance and the presence of drug paraphernalia led maternal aunt to suspect mother was using drugs. Maternal aunt returned with mother and R.R. to California, and for awhile mother, R.R. and a half-sister resided with maternal aunt. About a month later, mother alone returned to Arizona. When mother did not return on the date promised, maternal aunt contacted DCFS.

On June 18, 2009, mother called DCFS from Arizona. In the conversation, mother admitted using methamphetamines but denied she was addicted to drugs. Mother said she would return to California by June 26, but she did not do so. R.R. and her half-sister Amber were detained on June 30, 2009, and placed with a family friend.*fn2 According to the detention report, father's whereabouts were unknown.

DCFS filed a section 300 petition on July 6, 2009, as to Amber and R.R. The only allegations relating to appellant father were paragraphs b-7 and g-3, which alleged that he failed to provide R.R. with the necessities of life (§ 300, subds. (b), (g)).*fn3 At the July 6, 2009 detention hearing, father was found to be an alleged father whose whereabouts were unknown.

In its Jurisdiction/Disposition Report prepared for hearings later that month, DCFS reported father still had not been located but a due diligence search was in progress. The adjudication hearing was continued to September 2009.

C. Father's Appearance in the Matter: Alleged Drug Use

Father's first appearance was on August 18, 2009, at which time he was appointed counsel. Father filed a Statement Regarding Parentage requesting a determination that he was R.R.'s father, his parentage had been established by a DNA test, and he was current on his child support payments. According to a DCFS report filed September 10, 2009, father had three felony convictions that had resulted in prison terms. The most recent incarceration was a 16-month sentence for possession of a firearm in 2005. Father was separated from his wife and living with his mother; his two children from his estranged wife were living with her. Father wanted custody of R.R. DCFS recommended that father receive family reunification services and monitored visits with R.R.

Father appeared with counsel at the September 10, 2009 adjudication hearing and asked DCFS to provide a supplemental report on his paternity, compliance with child support orders, and negative drug tests. His counsel asked the court to expedite the processing of the lab report. "Obviously, if it's favorable to our client, if it's a clean test, we need it for preparation for our trial." Counsel also stated there was no reason to deny father visitation rights in the absence of a drug test that showed a substance abuse problem. Father also indicated his intention to challenge the finding that he was an alleged, not a presumed, father and to seek custody of R.R.

Minor's counsel requested that the social worker re-interview mother about her recent interactions with father because "there's been some information brought forward that I think needs to be investigated before any custody or placement decisions are made about R[ea]lene." The juvenile court continued the adjudication hearing to October 2, 2009, and ordered DCFS to prepare a supplemental report addressing, among other things, father's drug test results. Father was given monitored visits.

In an interview on September 16, 2009, father told the social worker that mother introduced him to methamphetamines years ago, but he had been drug free for six years. Father agreed to test "everyday to prove I have not been using drugs." DCFS recounted the interview in its report prepared for the October 2 hearing. Attached to the DCFS report was a toxicology report that showed on August 20, 2009, father had tested negatively for methamphetamine, cocaine, marijuana and other substances. Mother, however, had told the social worker that father had used methamphetamines with mother just two weeks before mother had entered into a drug program on July 21, 2009. Another report showed he was current on child support payments.

D. "New Information" Concerning Father and the Subpoena Duces Tecum

At the October 2, 2009 hearing, the children's counsel requested a continuance for DCFS to investigate undescribed "new information" about father that counsel had learned that day. Father objected to a continuance, arguing that the new information was "hearsay" and that father was ready to move forward with the adjudication. Mother and DCFS joined in the request for further investigation and a continuance. DCFS explained, "The information that's going to be investigated is going to be investigated via subpoena and so, if there is actual evidence, it will result from the subpoena and, of course, I would distribute to all parties." DCFS counsel said she intended to request a subpoena duces tecum to be returned to the court by October 19; she would provide the results (i.e., distribute the documents produced) to all counsel. Although father's hearsay objection suggested that father knew what "new information" had been brought to the investigator's attention, none of the attorneys described it for the record, and father did not ask DCFS to identify the entity that was to be subpoenaed.*fn4 Father objected to a continuance, but he did not object to the proposed procedure - the use of a subpoena duces tecum - to provide the court with additional material. The juvenile court continued the hearing to November 2, 2009, and ordered DCFS to file a supplemental report addressing, among other things, father's drug test results. In the interim, father was given unmonitored visits.

On October 13, 2009, the court clerk issued a subpoena directing the USC Medical Center to produce the following documents relating to father at the courthouse on October 19, 2009: "Certified copies of any and all records including but not limited to all charts, intake and discharge summaries, nursing notes, doctor's notes, lab test results and diagnostic scan results." The subpoena specified documents from "6/1/09 - present." Consistent with Code of Civil Procedure section 1985 (section 1985), the subpoena directed the witness to place the records in a sealed envelope, enclose a declaration with the records, attach a copy of the subpoena to the envelope, place the envelope in a larger outer envelope, mail the outer envelope to the clerk of the court, and mail a copy of the declaration to the attorney shown at the top of the form (DCFS counsel). A cover letter reiterated these directions and a sample declaration was provided.

At the adjudication hearing on November 2, 2009, the documents obtained by subpoena duces tecum were distributed to all counsel.*fn5 According to a Last Minute Information For The Court filed for the hearing, father was having successful unmonitored visits with R.R. But, "[d]uring a medical visit in 2009 [father] admitted to medical staff that he used methamphetamines, cocaine, marijuana and consumes 5 beers per day. Based on this information, [DCFS] is respectfully recommending that [father] no longer have unmonitored visits with [R.R.]." (Capitalization omitted.) At the hearing, father's counsel asked for a continuance, explaining that she "received a packet of information today that I need time to review and go over with my client."*fn6 Counsel for DCFS requested that father's visitation be changed to monitored based on the allegation that he was currently using methamphetamines. Over father's objection, the juvenile court ordered monitored visits and continued the matter to December 4, 2009.

E. The Amended Section 300 Petition

On November 16, 2009, DCFS filed an amended section 300 petition which, as it related to father, deleted paragraphs b-7 and g-3 that had alleged father had not provided R.R. with the necessities of life, and added paragraph b-8 that alleged father "admitted to medical staff at USC Medical Center on 7/18/2009, 7/20/2009 and 8/11/2009 that he last used methamphetamines on 7/17/2009 and that he has an eight year history of using methamphetamines. Father further admitted that he has used marijuana[;] has a twenty year history of consuming beer; that he drinks three beers a day for a total of twelve beers a week. Father further admitted that he has used cocaine. Father's drug use renders father incapable of providing regular care and supervision of the child. Further father's drug use endangers the child's physical and emotional health, safety, and well being, and places the child at risk of physical and emotional harm, and damage." The juvenile court granted father's request to put over his arraignment on the amended petition to the previously scheduled December 4, 2009 hearing.

F. The Motion to Quash the Subpoena Duces Tecum

On Wednesday, November 25, 2009, three weeks after the subpoenaed documents had been distributed to counsel, and the day before Thanksgiving, father filed a Motion to Quash Subpoena Duces Tecum, to be heard on Friday, December 4, 2009. The motion sought to exclude from evidence father's medical records and any reference to those records. Father asserted that the subpoena duces tecum did not comply with Code of Civil Procedure section 1985.3 and Evidence Code section 1560, which father maintained are applicable to dependency proceedings by virtue ...

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