Heidi S. v. David H.

          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 ...