(Super. Ct. No. SDR35507) APPEAL from a judgment of the Superior Court of Placer County, Frances Kearney, Judge; Dirk R. Amara, Court Commissioner.
The opinion of the court was delivered by: Hoch , J.
CERTIFIED FOR PUBLICATION
Affirmed in part and dismissed in part.
In this case, appellant Shaun Tyler Smith and respondent Tiffany Smith accuse each other of drug addiction and abuse of the judicial process in an ongoing fight for custody of their son. Shaun*fn1 appeals from two orders.
Shaun appeals from an order refusing to destroy certain family court records that contain references to his juvenile records, and redacting any references to his juvenile records in the reports that were prepared to assist the family court in determining custody: a mediation report, a substance abuse evaluation, and a child custody evaluation (collectively, the reports). Shaun contends the authors of the reports acted unlawfully in accessing his prior juvenile records, especially in light of a San Mateo County Superior Court (juvenile court) order to seal his juvenile records. He further argues that the family court's consideration of these "tainted" documents undermines his "fundamental right to raise and protect" his minor son. Thus, Shaun urges us to conclude that the family court was required to order the destruction of every report in the present case that referred to the San Mateo County juvenile records.
Shaun also appeals from a temporary custody order that took effect upon dissolution of a restraining order issued under the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200, et seq.) The prior restraining order had given Shaun legal and physical custody of his son, and conferred only visitation rights to Tiffany. He argues that the temporary custody order must be vacated because "[a]t no time during the proceedings in Placer County did [Tiffany] demonstrate a change in circumstances warranting a change in custody."
After requesting briefing from the parties on the appealability of the orders Shaun seeks to challenge, we conclude that the order redacting the reports' references to Shaun's juvenile records is appealable. On the merits, we conclude that the authors of the reports did not inspect any documents contained in Shaun's juvenile records and, in any event, the reports were completed before the sealing of Shaun's juvenile records. After reviewing the reports, we conclude that there was no prejudice to Shaun because none of the reports' recommendations or conclusions relies on Shaun's juvenile records. Finally, the reports are not themselves juvenile records subject to sealing and destruction under the juvenile court's order. Thus, the family court did not err in redacting any references to Shaun's juvenile records and refusing to order the reports to be destroyed.
As to Shaun's second appeal, we conclude that it must be dismissed because it is taken from a non-appealable temporary custody order.
Tiffany has not filed a respondent's brief.*fn2 As a result, we may accept as true the facts stated in Shaun's opening brief. (Miles v. Speidel (1989) 211 Cal.App.3d 879, 881; Cal. Rules of Court, rule 8.220(a)(2).) Nonetheless, Shaun still bears the "affirmative burden to show error whether or not the respondent's brief has been filed," and we "examine the record and reverse only if prejudicial error is found." (In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854.)
Shaun and Tiffany separated in January 2008. Their son was nearly a year old at the time.
In August 2008, Shaun obtained a restraining order against Tiffany from the El Dorado County Superior Court which, by its terms, expired in December 2008. Attached to the restraining order was a child custody and visitation order that gave Shaun legal and physical custody of their son and conferred visitation rights upon Tiffany. Also attached was an order directing Tiffany to seek substance abuse treatment. Both Shaun and Tiffany were ordered to enroll in a co-parenting class and an age-appropriate parenting class, and to maintain peaceful contact as to visitation.
In March 2009, a temporary custody order modifying Tiffany's visitation schedule was issued by the El Dorado County Superior Court. Three months later, Tiffany obtained an order directing Shaun to return their son to her until July 2, 2009, the date of the next scheduled hearing. Shaun apparently did not comply with the order.
At the conclusion of the July 2, 2009, hearing, the El Dorado County Superior Court ordered that the prior temporary custody and visitation schedule would remain in effect pending the mediation hearing, and ordered each parent to allow the other to pick up their son according to schedule. The court also set a review hearing for August 20, 2009. The record on appeal does not reveal whether these hearings were held. Nor does it reveal whether any orders were entered regarding custody.
Shaun subsequently moved from El Dorado County to Placer County. On December 31, 2009, Shaun filed an application for a restraining order against Tiffany in the Placer County Superior Court (family court) and also requested that the previous custody order be reaffirmed. The record on appeal does not contain this application or the court's ruling thereon. The record does reveal that Shaun and Tiffany were ordered to attend mediation services in order to "establish and implement mutual agreements regarding a parenting plan" for their son, who was then three years old.
The Sloper Mediation Report
In April 2010, Shaun and Tiffany were separately interviewed by mediator Sharon Sloper, a marriage and family therapist. Among other things, Sloper's report notes two child protective services reports filed by Shaun against Tiffany. The first was deemed "unfounded" and the second was "'evaluated out' which means that CPS did not find a need to investigate. There are no records of any reports by the mother."
The mediation report further notes: "CLETS [California Law Enforcement Telecommunication System]: Summary for the father is 'Two potential entries with felony conviction date were found for this subject.' The father's CLETS report is 9 pages long with multiple arrests, bench warrants, 'pleas to other charges' [redacted], Possession of a controlled substance (2003), DUI (2003), Possession of Control[led] Substance Paraphernalia (2003), Receiving Stolen Property (2003 with a sentence of one year in jail), Use of a controlled substance (2004)[,] Driving with suspended license (2004) and Battery, 242, (2004). [¶] The mother's background check documents the current restraining order protecting the father and his family from the mother." The redacted portion of the mediation report is in the middle of the summary of CLETS entries.
Sloper's report concluded that joint legal and physical custody would be in the best interests of the parties' son. The discussion section of the report, immediately preceding this conclusion, states: "The issues presented by the parents are complex and are ideal for case management through the STEP program.[*fn3 ] Each parent indicated that they would be willing to participate. The father presents as frustrated, yet wanting to 'build a case' as he states 'El Dorado County was biased against [him]' so he moved and requested a change of venue. The mother presents as credible, yet meek. Obviously the analysis of the presentations of the parents is subject to interpretation, yet may also provide a clue to the underlying dynamics of the family."
The Moore Substance Abuse Evaluation
In May 2010, Shaun and Tiffany submitted to a substance abuse evaluation conducted by Colleen Moore, a licensed marriage and family therapist and master addiction counselor. Tiffany's evaluation is not included in the appellate record. Shaun's evaluation includes a substance use history. In this history, the report notes that Shaun admitted to having "a history of methamphetamine dependence" beginning "at 18 years old," but that he "completed a one year residential treatment program in 2005-06." With respect to marijuana, the report stated that Shaun "first used marijuana at 13 years old. He reported that in high school he had an athletic injury and began hanging out with a 'bad crowd.' It was at this time he began using marijuana on a daily basis. [redacted] He quit marijuana when he quit methamphetamines in 2005. He then used medical marijuana 1-2 months after his cancer diagnosis in 2006 and up until he was arrested for cultivating marijuana in early 2007. He reported that he has not used marijuana since this time." With respect to alcohol, Shaun stated that he "first consumed alcohol at 14 or 15 years old . . . but because his father was an alcoholic he was mindful about how much he drank." Shaun also admitted to trying cocaine, ecstasy, and mushrooms. The redacted portion of the substance abuse evaluation is in the middle of the summary of Shaun's marijuana use.
Moore concluded that Shaun "has a history of methamphetamine dependence and a history of daily marijuana use and abuse. This evaluation found no evidence to suggest current drug abuse or dependence problems. This evaluation is inconclusive regarding current alcohol consumption patterns. These findings are based upon [Shaun's] self-report, collateral information from [Tiffany] and [an] inpatient treatment episode for methamphetamine dependence." Moore noted a number of reasons she found Shaun to be an "unreliable self-reporter." Moore also noted that she doubted his "abstinence dates," explaining: "It is uncommon for someone involved in NA to not remember his or her exact clean date. [Shaun] reported in our interview that the last time he used methamphetamines was 'probably December 2003'. He could not remember the exact date. Additionally [Shaun] was notably vague about his alcohol use over the last five years, suggesting more consumption than reported." Moore further explained: "Given his methamphetamine dependence and treatment history, his use of alcohol and marijuana shows poor judgment. [Shaun] fully knows that NA does not condone the use of mood altering substances when practicing abstinence from your drug of choice. This is commonly taught in treatment programs as well. Research shows that methamphetamine users, one year after a treatment episode had an 80% chance of relapse when drinking alcohol and 50% chance of relapse when smoking marijuana." Moore recommended "complete abstinence from alcohol, non alcoholic substitute beverages, illicit drugs and medical marijuana" and further recommended a drug testing plan to confirm Shaun's abstinence.
Shaun's Request to Seal and Destroy the Sloper Mediation
Report and Moore Substance Abuse Evaluation
On May 25, 2010, Shaun filed an order to show cause requesting that the family court seal and destroy Sloper's mediation report and Moore's substance abuse evaluation due to the references to his juvenile records. At the hearing, the court apparently declined to seal and destroy these documents and referred Shaun to San Mateo County Superior Court on grounds that only the juvenile court had jurisdiction to order ...