California Court of Appeals, Second District, First Division
APPEAL
from an order of the Superior Court of Los Angeles County,
No. BF044161, B. Scott Silverman, Judge.
Affirmed.
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COUNSEL
Opri &
Associates and Debra A. Opri for Plaintiff and Appellant.
Kearney
| Baker and Gary W. Kearney for Defendant and Respondent.
Opinion
by Johnson, J., with Rothschild, P. J., and Chaney, J.,
concurring.
OPINION
[205
Cal.Rptr.3d 338] JOHNSON, J.
On
November 5, 2012, police discovered Heidi S. (mother) in a
public park under the influence of alcohol and controlled
substances; mother was holding her 17-month-old son (the
child) in her arms. On March 4, 2014, following an
investigation by the Los Angeles County Department of
Children and Family Services (DCFS) and a dependency court
proceeding, the juvenile court awarded David H. (father) sole
legal and physical custody of the child, granted mother
limited visitation with the child [205 Cal.Rptr.3d 339] under
the supervision of a monitor, and terminated jurisdiction
over the child (Exit Order).
On May
29, 2014, less than three months later, on the basis of
allegedly changed circumstances since the issuance of the
Exit Order, mother filed in the family court a request to
modify the Exit Order. Mother requested joint legal custody,
sole physical custody, and unmonitored visitation.
On
March 3, 2015, Judge B. Scott Silverman of the family court
found a significant change of circumstances that warranted
modification of the Exit Order to permit mother increased
monitored visitation and, for the first time, to permit
mother unmonitored visitation (Custody Order). Nevertheless,
due to continuing concerns about mother that had not been
sufficiently resolved--e.g., mother's unexplained
seizures and the risk that mother might relapse into drug or
alcohol abuse--the family court ordered that sole legal and
physical custody of the child would remain with father. The
Custody Order also required that mother submit to additional
testing for the illegal use of controlled substances and for
the use of alcohol as a condition to further visitation.
Mother
appeals, contending that the family court abused its
discretion under Welfare and Institutions Code section 302,
subdivision (d), in refusing to grant her request for custody
and for visitation in its entirety. She also contends that
the family court violated Family Code section 3041.5 with
respect to its imposition of new testing requirements for
controlled substances and for alcohol; she further contends
that this alleged violation constitutes a denial of due
process. Her arguments concerning Family Code section 3041.5
present issues of first impression.
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We
affirm the family court's rulings on all issues.
BACKGROUND
I.
Relevant statutory provisions
Welfare
and Institutions Code section 302, subdivision (d) provides
as follows: " Any custody or visitation order issued by
the juvenile court at the time the juvenile court terminates
its jurisdiction pursuant to Section 362.4 regarding a child
who has been previously adjudged to be a dependent child of
the juvenile court shall be a final judgment and shall remain
in effect after that jurisdiction is terminated. The order
shall not be modified in a proceeding or action described in
Section 3021 of the Family Code unless the court finds that
there has been a significant change of circumstances since
the juvenile court issued the order and modification of the
order is in the best interests of the child."
Family
Code section 3041.5 provides the following: " In any
custody or visitation proceeding brought under this part, as
described in Section 3021, or any guardianship proceeding
brought under the Probate Code, the court may order any
person who is seeking custody of, or visitation with, a child
who is the subject of the proceeding to undergo testing for
the illegal use of controlled substances and the use of
alcohol if there is a judicial determination based upon a
preponderance of evidence that there is the habitual,
frequent, or continual illegal use of controlled substances
or the habitual or continual abuse of alcohol by the parent
... . This evidence may include, but may not be limited to, a
conviction within the last five years for the illegal use or
possession of a controlled substance. The court shall order
the least intrusive method of testing for the illegal use of
controlled substances or the habitual or continual abuse of
alcohol ... . The parent ... who has undergone drug testing
shall have the right to a [205 Cal.Rptr.3d 340] hearing, if
requested, to challenge a positive test result. A positive
test result, even if challenged and upheld, shall not, by
itself, constitute grounds for an adverse custody or
guardianship decision. Determining the best interests of the
child requires weighing all relevant factors. ... The results
of the testing may not be used for any purpose, including any
criminal, civil, or administrative proceeding, except to
assist the court in determining, for purposes of the
proceeding, the best interest of the child pursuant to
Section 3011 and the content of the order or judgment
determining custody or visitation. The court may order either
party, or both parties, to pay the costs of the drug or
alcohol testing ordered pursuant to this section."
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II.
Facts of the case
On
November 5, 2012, the Los Angeles police received several
phone calls from concerned citizens reporting that they had
seen a woman in a public park with a baby and that she had
almost dropped the baby several times. After arriving at the
park and finding mother, the police administered two
breathalyzer tests to determine mother's blood-alcohol
level; the tests revealed that mother had a blood-alcohol
level of 0.11 or 0.12. Mother told the police that earlier in
the day she had consumed " two beers" and two pills
containing Norco, a pain reliever, within a two-hour period.
The police arrested mother for child endangerment.
On the
same day, after her arrest, during an interview with the DCFS
social worker assigned to investigate the incident, mother
stated that she had consumed beer and a Norco pill earlier
that day and that the night before she had ingested a
medication called Seroquel.
On
November 6, 2012, mother told the same DCFS social worker
that before going to the park the previous day, she had
intended to ingest a Norco pill but she had mistakenly
consumed a pill containing Ambien, a sedative. Mother stated
that she could not remember any of the events that occurred
on November 5, 2012 after she had taken the Ambien pill,
including traveling to the park with her son and being
arrested by the police.
Shortly
after DCFS's interviews with mother, DCFS filed a
petition in the juvenile court asking the court to open a
case concerning the child and requesting that the police or a
social worker remove the child from mother's care. On or
about November 14, 2012, in case No. CK96444, the juvenile
court held the first detention hearing, pursuant to section
319 of the Welfare and Institutions Code, in the matter
concerning the child. On March 4, 2014, following a
dependency proceeding,[1] the juvenile court issued the Exit
Order, awarding father sole legal and physical custody of the
child. The Exit Order permitted mother supervised visitation
with the child for " 2 hours 3 times per week." The
Exit Order stated that mother's visitations with the
child " must be supervised" by a monitor, that the
selection of the monitor must be " agreed upon by the
parties," and that " [i]f there is no agreement,
then father may choose monitor, or mother to use professional
monitor, paid for by mother." The Exit Order also
required mother to complete a " drug abuse treatment
program with random testing" and to " continue
counseling and psychiatrist care." The juvenile court
terminated jurisdiction over the child and held that any
request to [205 Cal.Rptr.3d 341] modify the Exit Order must
be brought in the family court.
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III.
Procedural history
On May
29, 2014, not even a full three months after the issuance of
the Exit Order, in case No. BF044161, mother filed in the
family court a request to modify the Exit Order. In the
request, mother sought joint legal custody, sole physical
custody, and visitation described as " 50% custodial
arrangement with the respondent [father] based upon work
schedules and flexibility." (Capitalization omitted.)
With
the request, mother filed a declaration asserting that a
material change of circumstances had occurred since the
juvenile court issued its Exit Order and that the requested
modification of the Exit Order would be in the child's
best interests. First, mother asserted that she had completed
the " Social Services case plan, and in fact, ha[d]
successfully gone above and beyond what was required."
Since December 2013, she had consistently attended individual
counseling and therapy sessions with a clinical psychologist,
Dr. Lester Summerfield; in addition, a psychiatrist had
treated mother once every three weeks. She had completed 18
months of DCFS-monitored drug testing with negative results
from December 2012 to March 4, 2014; [2] after that interval,
she continued to submit to drug testing on her own volition,
including testing based on urine, blood, and hair follicle
samples--all with negative results. She also attended an
outpatient drug and alcohol treatment program from April 3,
2013 to May 30, 2013, successfully completed that program,
attended 20 Alcoholics Anonymous meetings, and completed a
parenting course. Further, mother's declaration claimed
that mother's monitored visits with the child have
proceeded " extremely well." On August 13, 2014,
mother filed a supplemental declaration attaching clinical
psychologist Dr. Marlene W. Valter's psychological
evaluation of mother.
On
August 11, 2014, in opposition to mother's request to
modify the Exit Order, father filed his own declaration
explaining his concerns about mother's ability to care
for the child. He first cited an Evidence Code section 730
evaluation ordered by the dependency court: in that
evaluation, the court-ordered expert concluded that mother is
a " 'very disturbed person'" with "
'psychopathic tendencies,'" that she "
'suffers from a " [m]ixed [p]ersonality [d]isorder
with [a]ntisocial and [n]arcissistic traits,"
'" that she " 'is a " serious and
dangerous risk to her young son," ' and that she
" has a potential 'for homicide of the
child.'" (Boldface omitted.)
Father's
declaration then reminded the family court that the
court-ordered expert had requested a Department of Justice
(DOJ) report concerning
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mother, which revealed that mother had been " doctor
shopping." (Boldface omitted.) Mother had received
treatment from six different physicians and received
medication from at least four different pharmacies at the
same time, including Ambien, Lunesta, Codeine, Promethazine,
Vicodin, Olonazepam, Ativan, Xanax, and Ritalin; she had
filled a prescription as recently as September 4, 2013. The
DOJ report therefore expressed concern about the validity of
mother's negative results from drug testing taken during
the same period that she had been receiving prescriptions for
at least nine different medicines; the report suggested that
mother may have been altering the results of her drug
testing. Father's declaration then cited the witness
statement by mother's childhood friend Timothy [205
Cal.Rptr.3d 342] Sanchez; Mr. Sanchez stated that he had
observed mother purchase synthetic urine in order to pass a
drug test, seemingly confirming the concerns related to
altered drug testing results expressed in the DOJ report.
In the
declaration, father also cited a letter from Dr. Lawrence
Genen, one of mother's four psychiatrists during the time
that mother had been " doctor shopping." Dr. Genen
had treated mother since her arrest on November 5, 2012.
Although Dr. Genen initially supported mother during the
dependency court proceeding, on September 23, 2013, Dr. Genen
informed DCFS that he had terminated his treatment of mother
because " she is abusing prescription controlled
substances." (Boldface omitted.) He also reported to
DCFS that he " would not recommend unsupervised
visitation with her son." (Boldface omitted.)
Further,
father's declaration asserted that the parenting course
relied on by mother was an online course; the only in-person
parenting course that mother attended was the court-mandated
one. During the court-mandated parenting course, reports
described mother as " walking off balance, holding onto
the walls for support, disoriented, and hav[ing] slur[red]
speech." (Boldface omitted.) The representative of the
court-mandated ...