Heidi S. v. David H.

Filed 7/28/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
HEIDI S., B263933
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BF044161)
v.
DAVID H.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, B. Scott
Silverman, Judge. Affirmed.
Opri & Associates and Debra A. Opri for Plaintiff and Appellant.
Kearney | Baker and Gary W. Kearney for Defendant and Respondent.
——————————
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 Child 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 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.
We affirm the family court’s rulings on all issues.
2
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 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
3
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.”
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 .11 or .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.
4
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 modify the Exit Order must be brought in the family court.
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
1 The appellate record is silent on the subsequent events leading up to the juvenile
court’s Exit Order.
5
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 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
2There are only 15 months between December 2012 to March 4, 2014; mother
does not explain this discrepancy in her briefs.
6
same period that she had been receiving prescriptions for at least nine different
medicines; the report suggested that mother may be altering the results of her drug
testing. Father’s declaration then cited the witness statement by mother’s childhood
friend Timothy 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 in 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 parenting course stated that she did not recommend permitting mother to have
unmonitored visits with the child.
Finally, father expressed concerns about the credibility of the clinical
psychologist, Dr. Summerfield, whose January 24, 2014 recommendation letter mother
relied on in her declaration to the family court; father asserted that Dr. Summerfield had
provided false information to the dependency court during the earlier proceeding.3
3 Dr. Summerfield’s letter claimed that mother had survived a plane crash causing
the death of her friend and the pilot and that he had diagnosed mother with chronic
posttraumatic stress disorder. When asked during the dependency proceeding for more
7
Further, because mother relied on the same seven-month-old letter of recommendation
previously-filed in the dependency proceeding, father also questioned whether
Dr. Summerfield’s opinion constituted new evidence describing events that occurred after
the issuance of the Exit Order.
On November 4, 2014, the family court began the hearing on mother’s request to
modify the Exit Order. Mother presented the testimony of clinical psychologists
Dr. Valter and Dr. Summerfield; the family court then continued the matter to the next
day. On November 5, 2014, mother presented the testimony of Phyllis Block, the
monitor who supervised mother’s visitations with the child; mother also testified; then,
the family court continued the matter to later in the month.
On November 21, 2014, after mother completed her testimony, father presented
the testimony of the nanny for the child; father also testified. The family court continued
the matter to the next month. On December 12, 2014, father completed his testimony and
then presented the testimony of the following witnesses: Ann Rosato, the DCFS social
worker who handled the DCFS investigation during the dependency proceeding; Nils
Grevillius, the private investigator who father hired to investigate the alleged existence of
three coworkers who had written recommendation letters supporting mother in the
dependency matter; and mother. The family court continued the matter to the next year.
On February 4, 2015, father presented the testimony of Mr. Sanchez, mother’s childhood
friend; the family court then continued the matter another month.
On March 3, 2015, nearly a year after the juvenile court issued the Exit Order, the
family court heard closing arguments from the parties and then stated on the record its
evidence supporting the occurrence of the plane crash, Dr. Summerfield cited a lawsuit
based on mother’s claim that a liquid had injured mother’s head when she had boarded a
gated plane. Dr. Summerfield later admitted that he had made an error in his letter when
he claimed that mother had been in a plane accident.
8
findings of fact, its conclusions of law, and its ruling on mother’s request to modify the
Exit Order.4
Consistent with the family court’s oral rulings at the hearing, the Custody Order
made no modification to the Exit Order’s award of sole legal and physical custody to
father. However, the Custody Order modified the visitation schedule by creating a three-
tiered system in order to phase out gradually the monitored visitation and to phase in
unmonitored visitation.
In the first tier, from March 14, 2015 to July 3, 2015,5 mother had monitored
visitation on alternating weekends from Saturday 9:00 a.m. through Sunday 6:00 p.m.,
with a monitor present on both days from 9:00 a.m. to 6:00 p.m.; on the weeks without a
weekend visitation, mother had a monitored visit on Friday from 3:00 p.m. to 6:00 p.m.
The order required mother to submit to four random tests per month for the illegal use of
controlled substances and for the use of alcohol; the order required mother to pay for
those tests. The order further stated: “If mother misses one test or receives a positive
drug test, then visitation shall resume back to the monitored schedule of six hours per
week.”6
Following successful completion of the first tier, in the second tier from July 4,
2015 to October 9, 2015, mother had unmonitored visitation on alternating weekends
from Saturday 9:00 a.m. through Sunday 6:00 p.m; on the weeks without a weekend
visitation, mother had a monitored visit on Friday from 3:00 p.m. to 6:00 p.m. The order
increased the random drug and alcohol testing to six tests per month “continuing
indefinitely.” Again, the order mandated that mother pay for those tests; further, “[i]f
4 We present a more detailed summary of the family court’s statements during the
hearing in the Discussion section below.
5 At oral argument, counsel represented to this court that during the pendency of
this appeal the Custody Order’s three-tiered plan has been in effect.
6We presume that the family court intended that a positive result from an alcohol
test would also lead to a return to the monitored visitation schedule of six hours per week.
9
mother misses one test or receives a positive drug/alcohol test, then visitation shall
resume back to the monitored schedule of six hours per week.”
After completion of the second tier, in the third tier starting on October 10, 2015
and requiring an open-ended period, mother has unmonitored visitation on alternating
weekends from Saturday 9:00 a.m. through Sunday 6:00 p.m. and every Wednesday
“from after school to 7:00pm.” The testing for controlled substances and for alcohol that
began in the second tier remained in effect. The Custody Order also implemented a
schedule for holidays, for attendance at school functions and at school activities, and for
telephonic contact with the child when the child is in the other parent’s custodial care.
Mother filed an appeal from the Custody Order; father did not appeal the order.
DISCUSSION
I. The family court did not abuse its discretion in refusing to grant mother’s
request for custody and for visitation in its entirety.
A. Standard of review
As trial courts have broad powers and have the widest discretion to fashion a
custody and visitation plan that is in the child’s best interest, we employ the deferential
abuse of discretion standard of review on a trial court’s ruling on custody and on
visitation. (In re Marriage of Burgess (1996) 13 Cal. 4th 25, 32.) “The trial judge,
having heard the evidence, observed the witnesses, their demeanor, attitude, candor or
lack of candor, is best qualified to pass upon and determine the factual issues presented
by their testimony.” (In re Marriage of Lewin (1986) 186 Cal. App. 3d 1482, 1492.) An
abuse of discretion occurs when the trial court exceeds the bounds of reason; even if we
disagree with the trial court’s determination, we uphold the determination so long as it is
reasonable. (Stull v. Sparrow (2001) 92 Cal. App. 4th 860, 864.) We do not reverse
unless a trial court’s determination is arbitrary, capricious, or patently absurd.
B. Finding a significant change of circumstances since the juvenile court
issued the Exit Order, the family court modified the Exit Order.
In order to modify a juvenile court’s exit order, the family court must first make a
finding that “there has been a significant change of circumstances since the juvenile court
10
issued the order and modification of the order is in the best interests of the child.” (Welf.
& Inst. Code, § 302, subd. (d).) As a threshold matter, the parties dispute whether the
family court even made a “significant change of circumstances” finding and as a
consequence whether the family court did or did not modify the Exit Order pursuant to
Welfare and Institutions Code section 302, subdivision (d).
Mother asserts that the family court did make express factual findings of
substantially changed circumstances, citing the family court’s statements during the
hearing discussing the monitor’s favorable reports of mother’s visitations with the child,
the negative results from mother’s drug and alcohol testing, and the supporting opinions
of her clinical psychologists Dr. Valter and Dr. Summerfield, which all occurred after the
issuance of the Exit Order. Further, mother asserts that the family court did modify the
Exit Order, for example, in increasing the frequency and the length of her visitations with
the minor, and that the family court expressly stated so: “The Court modifies the current
visitation schedule.”
Father disagrees, citing the family court’s statements at the hearing that although it
found evidence warranting a change in the visitation schedule, it had remaining concerns
regarding mother that prohibited it from granting her request to change the custody
arrangement. In other words, father appears to argue that a finding of substantially
changed circumstances is not a prerequisite to modifying a visitation schedule, and that
only a modification to a custody arrangement requires such a finding. He also appears to
argue that if the family court had found substantially changed circumstances, it would
have modified the custody arrangement, but the absence of any change in the custody
award signifies that the family court made no finding of changed circumstances.
Father incorrectly relies on the general rule applicable in family court that the
family court can modify a visitation order, but not a custody order, without first finding a
substantial change of circumstances since the prior order. (In re Marriage of Lucio
(2008) 161 Cal. App. 4th 1068, 1072, 1077.) In fact, the relevant statutory provision,
Welfare and Institutions Code section 302, subdivision (d), imposes a greater burden
when a family court modifies a juvenile court’s exit order, requiring that for
11
modifications to either a “custody or visitation order” the family court must first find a
significant change of circumstances since the juvenile court’s issuance of the exit order.
(Welf. & Inst. Code, § 302, subd. (d); In re Marriage of David & Martha M. (2006) 140
Cal. App. 4th 96, 98, 101–103.) Thus, before modifying the visitation schedule set forth in
the Exit Order, the family court must find a significant change of circumstances that
warrants that modification.
In this case, during the March 3, 2015 hearing, the family court addressed at
length the post-Exit Order changed circumstances that had occurred, including the
favorable reports by the monitor who oversaw the weekly visits between mother and the
minor, the numerous and consistent drug and alcohol testing with negative results, the
favorable opinion of the psychologist who counseled mother every week for the majority
of the past year, mother’s continued employment stability, and the absence of any further
incident by mother with law enforcement. After acknowledging the standard requiring
substantially changed circumstances as a precondition for modification of the Exit Order,
the family court stated that “there [has] been sufficient evidence in the Block reports and
the history of testing to warrant this court, at this point in time, a year after . . . the
conclusion of the dependency proceedings, to consider altering the visitation arrangement
that is currently in place.” The family court then described the new visitation schedule at
length. Further, the court order that issued on the same day expressly stated that the
“Court modifies the current visitation schedule.” Indeed, by substantially increasing
mother’s monitored visitation with the child and by permitting her unmonitored visitation
with the child for the first time, the Custody Order unequivocally modified the visitation
schedule.
For the foregoing reasons, we easily reject father’s argument on this issue.
C. The family court did not abuse its discretion in refusing to grant mother’s
request for custody and for visitation in its entirety.
Mother asserts on appeal that by relying too heavily on the events occurring before
the juvenile court issued the Exit Order and by not relying sufficiently on the changed
circumstances after the Exit Order issued, the family court abused its discretion in not
12
permitting a greater increase in her visitation with father and in making no change to the
Exit Order’s award of exclusive custody of the child to father.
We briefly summarize the respective roles of the juvenile court and the family
court with regard to an exit order. When a child is a dependent of the juvenile court, that
court resolves all custody issues regarding the child (Welf. & Inst. Code, § 304) and
provides “a forum to ‘restrict parental behavior regarding’” the child and a forum to
remove the child from the custody of the parents. (In re Chantal S. (1996) 13 Cal. 4th
196, 201.) When the juvenile court terminates its jurisdiction, it issues an exit order
“determining custody of, or visitation with, the child” that becomes part of an existing
family law case or the basis for opening a family law file (Welf. & Inst. Code, § 362.4);
the exit order “shall be a final judgment and shall remain in effect after [the juvenile
court’s] jurisdiction is terminated.” (Welf. & Inst. Code, § 302, subd. (d).)
Once an exit order is in place, “‘the paramount need for continuity and stability in
custody arrangements—and the harm that may result from disruption of established
patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor
of maintaining’ that custody arrangement.” (In re Marriage of Brown & Yana (2006) 37
Cal. 4th 947, 956.) The family court may modify the exit order only if “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.” (Welf. &
Inst. Code, § 302, subd. (d).) Therefore, the moving party has a twofold burden to show
a significant change of circumstances since the juvenile court issued the exit order and to
show why the requested modification would be in the child’s best interests.
In this case, the juvenile court’s Exit Order awarded father sole legal and physical
custody of the child and permitted mother very limited visitation of only two hours three
times a week, conditioned upon a monitor’s presence during the visitation; further, the
Exit Order required mother to submit to a drug abuse treatment program with random
drug testing as well as continued counseling and psychiatrist care. The Exit Order
therefore reflected the juvenile court’s clear concerns about mother’s substance abuse
problems, her mental and emotional states, and the effect on the child’s well-being.
13
Failing to appeal that order, mother chose to request a modification of that order
only a few months later; the family court appropriately expressed concerns that mother
had improperly sought a reconsideration of the juvenile court’s Exit Order. Due to
multiple continuances of the modification hearing, however, by the end of the hearing,
the parties had presented to the family court nearly a year’s worth of data concerning
mother’s behavior since the issuance of the Exit Order.
At the end of the hearing, the family court provided a lengthy analysis of the
events since the Exit Order issued and of how the family court weighed those factors in
making its final determination on mother’s request to modify the Exit Order. The court
acknowledged mother’s improved behavior since the issuance of the Exit Order,
including the favorable reports by the monitor who oversaw the weekly visits between
mother and the minor, the numerous and consistently negative results from mother’s drug
and alcohol testing, the favorable opinion of the psychologist who counseled mother
every week for the majority of the previous year, mother’s continued employment
stability, and the absence of any incident with law enforcement.
Nevertheless, the court determined that three serious concerns remained
unresolved and that mother had failed to address these concerns to the court’s
satisfaction. First, having observed mother’s testimony at trial, the court maintained a
substantial concern about mother’s lack of credibility.7 Second, the court had a concern
about “assur[ing] the child’s safety” in light of mother’s unexplained seizures and
whether mother could anticipate or control those seizures when the minor was in her care
without a monitor’s supervision. Finally, the court expressed “continuing concern” that
7 We agree with the family court’s consideration of mother’s lack of credibility at
the hearing as a valid factor to inform its ruling. However, we do not go so far as the
family court in determining that a parent’s seeming lack of veracity or a parent’s failure
to acknowledge her drug and alcohol addiction are themselves bases to determine
whether mother can enjoy visitation with, or custody of, her own child.
14
mother might relapse, that is, return to her use of illegally consuming controlled
substances or to her abuse of alcohol.
The court summarized its ruling: “There [has] been sufficient evidence in the
Block reports and the history of testing to warrant this court, at this point in time, a year
after . . . the conclusion of the dependency proceedings, to consider altering the visitation
arrangement that is currently in place. There [are], however, significant concerns that I
articulated . . . for me to conclude, one, that the court is not entertaining in any respect a
change of primary custody in this case, and that substantially different evidence would be
necessary. . . . [¶] Second, the court is not prepared to entertain a shared custody
arrangement at this point. And at least at this point, frankly, that is the most ambition that
I think either mother should aspire to someday or father should recognize is possible
someday, is some shared custody arrangement. But . . . we’re, again, far from that point.
[¶] . . . I think it’s appropriate to have significantly more hours for mother. The question
is how I do that and assure the child’s safety because of my concern about the . . . seizure
incidents, which there had been at least one, and my continuing concern about the
petitioner’s risk of relapse unless she is under continued strict controls with respect to
drug and alcohol abuse.” The court then described the new three-tier visitation schedule.
Exercising reasonable judgment, the family court struck an appropriate balance in
acknowledging that changed circumstances warranted modification of the visitation
schedule but also determining that those changes did not justify the full remedy requested
by mother, particularly her request for custody. That determination fell squarely within
the broad discretion of the family court.
We find nothing in the family court’s ruling to be arbitrary, capricious, or patently
absurd.
Although mother asserts on appeal that the family court placed too much emphasis
on the events occurring before the issuance of the Exit Order, the family court had a
statutory obligation to consider the circumstances at the time the Exit Order issued in
order to determine whether those circumstances had substantially changed to warrant a
modification of the Exit Order. Mother’s briefs effectively have urged that this reviewing
15
court re-weigh the evidence before the family court and make a determination more
favorable to her; this we may not do.
Mother also asserts on appeal that the family court failed to consider the best
interests of the child. Contrary to her assertion, the record shows that the family court
properly considered the child’s safety, as expressly explained by the family court at the
hearing. The final ruling is consistent with the best interest of the child because it
maintains continuity and stability by keeping the child in the sole physical custody of
father. In light of the serious concerns stemming from mother’s unexplained seizures and
her risk of relapse, father’s maintaining sole responsibility for decisions relating to the
health, education, and welfare of the child8 also serves the best interest of the child.
Thus, we find no abuse of discretion regarding the family court’s ruling on this point.
II. The family court complied with Family Code section 3041.5.
Mother contends that by requiring her to submit to drug testing indefinitely as a
condition to further visitation and by ordering that a positive drug test result would
immediately trigger a return to the reduced visitation schedule imposed by the Exit Order,
the family court violated Family Code section 3041.5.
A. The family court must comply with Family Code section 3041.5 when
modifying a juvenile court’s Exit Order.
As a threshold matter, father argues that because the family court merely
continues, extends, refines, and adjusts the Exit Order issued by the juvenile court, the
family court need not comply with Family Code section 3041.5 and need only comply
with the statutory requirements imposed upon the juvenile court, not the family court.
Father cites no case law to support his argument. Instead, he argues that Family Code
section 3041.5 only applies to custody or visitation proceedings brought under Family
Code section 3021 but “[t]he proceedings which are the subject of this appeal
8 “‘Sole legal custody’ means that one parent shall have the right and the
responsibility to make the decisions relating to the health, education, and welfare of a
child.” (Fam. Code, § 3006.)
16
were . . . brought . . . under the special provision of the Welfare and Institutions Code.”
As we shall explain, father’s argument is without merit.
Family Code section 3041.5 applies to “any custody or visitation proceeding
brought under this part, as described in Section 3021.” Family Code section 3021
provides that “[t]his part applies in any of the following: (a) A proceeding for dissolution
of marriage. (b) A proceeding for nullity of marriage. (c) A proceeding for legal
separation of the parties. (d) An action for exclusive custody pursuant to Section 3120.
(e) A proceeding to determine physical or legal custody or for visitation in a proceeding
pursuant to the Domestic Violence Prevention Act (Division 10 (commencing with
Section 6200)). . . . (f) A proceeding to determine physical or legal custody or visitation
in an action pursuant to the Uniform Parentage Act (Part 3 (commencing with Section
7600) of Division 12). (g) A proceeding to determine physical or legal custody or
visitation in an action brought by the district attorney pursuant to Section 17404.”
The parties do not argue that this family court proceeding (case No. BF044161)
falls outside of Family Code section 3021. Father admits that this action began when
mother filed it shortly after the birth of the child “in order to establish parental relations”
between the child and father. Though the appellate record is sparse on the events
occurring in the family court proceeding before mother’s request to modify the Exit
Order, the record does contain the family court’s judgment for paternity, child custody,
and visitation dated June 8, 2012, which issued before the November 5, 2012 incident in
the public park which triggered the juvenile court proceeding. Father’s admission and the
June 8, 2012 judgment show that the family court case (case No. BF044161) began
before the juvenile court case (case No. CK96444) and that the two cases are separate
proceedings.
Welfare and Institutions Code section 362.4 requires that the “order of the juvenile
court shall be filed in the proceeding for nullity, dissolution, or legal separation, or in the
proceeding to establish paternity, at the time the juvenile court terminates its jurisdiction
over the minor, and shall become a part thereof.” (Italics added.) Thus, once the
juvenile court issued the Exit Order and its jurisdiction ended, the family court had the
17
responsibility to enforce the Exit Order. But the family court proceeding remained a
separate proceeding from the juvenile court proceeding. The family court’s Custody
Order is a new and separate court order from the Exit Order; the superior court ruling that
we review in this appeal is the family court’s Custody Order, not the juvenile court’s Exit
Order. The mere fact that Welfare and Institutions Code section 362.4 and section 302,
subdivision (d), (defining the changed circumstances standard that the family court
applies in modifying a juvenile court’s exit order) are set forth in the Welfare and
Institutions Code does not convert the family court proceeding into a juvenile court
proceeding. Therefore, father’s assertion that “[t]he proceedings which are the subject of
this appeal were brought . . . under the special provision of the Welfare and Institutions
Code” is incorrect.
Our Supreme Court has explained that the juvenile court and the family court have
different purposes and that different rules and statutes govern each court. (In re
Chantal S., supra, 13 Cal.4th at pp. 206, 208, 210.) In Chantal S., the Supreme Court
held that the juvenile court had the authority to issue an exit order indefinitely requiring
the parent to participate in a counseling program even though the matter subsequently
proceeded to the family court, which only had the authority to require counseling limited
to one year. (Id. at pp. 200, 208.) Relevant to this case, the Supreme Court explained,
“Courts are often placed in the position of enforcing orders of other courts, even though
the enforcing court could not have made the order in the first instance, or would not have
present authority to issue the precise order. [Citations.] If, as we conclude, the order
was one that a juvenile court could properly make on termination of its dependency
jurisdiction, the fact that the family court would be precluded from making that same
order does not render the order unenforceable in the family court.” (Id. at pp. 208–209,
italics added.)
Thus, contrary to father’s assertion, the juvenile court and the family court each
have specific statutory authority; the family court cannot “borrow” the authority of the
juvenile court—whose jurisdiction over the child has already ended—under the guise of
“modifying” the previous order. Any other ruling would expand the family court’s power
18
beyond its statutory grant. Once the juvenile court’s jurisdiction has ended, although the
family court can enforce the Exit Order, the family court must rely on its own statutory
authority to issue new orders, including orders modifying exit orders issued by the
juvenile court.
In this case, mother completed the drug testing requirements imposed by the
juvenile court’s Exit Order, which only required completion of a “drug abuse treatment
program with random testing.” Yet the family court’s subsequent Custody Order created
new drug testing requirements not tied to any drug abuse treatment program, contrary to
father’s assertion that the Custody Order merely “refined” or “adjusted” the drug testing
requirements imposed by the Exit Order.
This case is a clear example of the boundary between the juvenile court’s authority
and the family court’s authority. Thus, before ordering mother to submit to new drug
testing, the family court had to comply with the requirements in Family Code section
3041.5. We discuss in the following sections whether the family court, in fact, did so.
B. The family court properly made the judicial determination required by
Family Code section 3041.5.
Family Code section 3041.5 provides the following: “[T]he 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.”
Mother argues that the family court failed to make any judicial determination
that mother exhibited the habitual, frequent, or continual illegal use of controlled
substances or the habitual or continual abuse of alcohol as required by Family Code
section 3041.5. We disagree.
At the hearing, discussing first the incident on November 5, 2012, the family
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court found that mother had a drug and alcohol problem that caused her arrest. Next,
relying on the opinion of Dr. Genen, the family court found that mother had an addiction
to, and a pattern of abusing, prescription drugs. Finally, before ordering mother to submit
to drug testing, the family court expressly found a “continuing concern about the
petitioner’s risk of relapse unless she is under continued strict controls with respect to
drug and alcohol abuse.”
The foregoing findings by the family court constitute 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” pursuant to Family Code section 3041.5.
Further, mother alleges that Family Code section 3041.5 limits the family court
to considering only evidence of a party’s drug use and alcohol abuse occurring after a
party’s request to modify an exit order, and that therefore the family court erred in
making the judicial determination that she exhibited “habitual, frequent, or continual
illegal use of controlled substances” or “habitual or continual abuse of alcohol.” (Fam.
Code, § 3041.5.) She contends that Family Code section 3041.5 limits the family court to
consider only evidence that “at the time of the hearing” or “at the time its order was
made” she was under the influence of controlled substances or of alcohol. (Boldface
omitted.)
The statute contains no such temporal limitation on the evidence that the family
court can consider; indeed, such a limitation is nonsensical. There may be very little time
that passes between the party’s request to modify the exit order and the family court’s
ruling on that request. In many cases, the evidence showing the parent’s illegal use of
controlled substances or abuse of alcohol concerns events that occurred before or during
the dependency proceeding. A habitual, frequent, or continual user of controlled
substances or of alcohol would almost always avoid application of this statute if it limited
the family court to such a narrow time window as proposed by mother.
Contrary to mother’s assertion, a party’s request to modify an exit order does not
create a blank slate; the court will not put blinders on and ignore the party’s history.
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There is no bright line that distinguishes when a habitual, frequent, or continual abuser of
controlled substances or alcohol is no longer one. Common sense dictates that the family
court look to the totality of the circumstances to ascertain whether the risk of relapse in a
particular case requires close scrutiny of a party.
Importantly, the statute even expressly authorizes the family court to consider “a
conviction within the last five years for the illegal use or possession of a controlled
substance.” (Fam. Code, § 3041.5.) Thus, the Legislature undoubtedly contemplated a
retrospective approach to this determination.
Citing no authority to support her position, mother appears to be relying on a
forced reading of the “significant change of circumstances” standard in Welfare and
Institutions Code section 302, subdivision (d), which requires a showing of a significant
change of circumstances since issuance of the exit order as a precondition to the family
court modifying that exit order. But that code section requires that, in determining
whether circumstances have significantly changed, the family court must consider the
events after the juvenile court issued its exit order, not after the party’s request to modify
the exit order. (Welf. & Inst. Code, § 302, subd. (d).) Moreover, that code section
contains no blanket prohibition precluding the family court from considering evidence
before or during the dependency proceeding. In fact, the very task of the family court is
to consider the events that occurred before the exit order in order to identify what
concerns about the requesting party the juvenile court identified in the exit order; this is
the only means by which the family court can determine whether the requesting party has
successfully addressed those concerns.
Thus, we reject mother’s contention that the family court must consider only
evidence after a party’s request to modify an exit order in order to determine whether
there is habitual, frequent, or continual illegal use of controlled substances or habitual or
continual abuse of alcohol by the party as required by Family Code section 3041.5.
Here, the police arrested mother for child endangerment because she was under
the influence of controlled substances and of alcohol in a public park; mother admitted
that she had consumed controlled substances and alcohol earlier that day. Further,
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evidence from Dr. Genen showed that mother was “doctor shopping” and that she was
ingesting at least nine prescription medications as recently as the end of 2013. Both her
arrest and her doctor shopping occurred only one to two years prior to the issuance of the
Custody Order. Therefore, the family court did not err in finding “the habitual, frequent,
or continual illegal use of controlled substances or the habitual or continual abuse of
alcohol” by mother that warranted additional drug and alcohol testing as a condition for
increased visitation.
C. The family court has the authority to order drug testing to continue
indefinitely as a condition to further visitation.
Mother contends that because Family Code section 3041.5 does not expressly
state that the family court can order drug testing to continue “indefinitely,” the family
court erred in ordering mother to submit to open-ended drug testing as a condition to the
new visitation schedule. For the following reasons, we reject her argument.
A court’s “fundamental task in construing a statute is to ascertain the intent of
the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by
examining the statutory language, giving the words their usual and ordinary meaning.
[Citation.] If there is no ambiguity, then we presume the lawmakers meant what they
said, and the plain meaning of the language governs.” (Day v. City of Fontana (2001) 25
Cal. 4th 268, 272.)
The plain language of Family Code section 3041.5 permits the family court to
“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 . . . .” The language is unambiguous. Nothing in the statute limits the
family court to ordering drug testing for a fixed period of time. In contrast, other
statutory provisions of the Family Code contain temporal limitations on the family
court’s authority; for example, Family Code section 3190, subdivision (a) imposes a one-
year limitation when the family court orders a parent to participate in outpatient
counseling with a licensed mental health professional. (See, e.g., In re Chantal S., supra,
13 Cal.4th at p. 205.) Thus, if the Legislature had wanted to impose a temporal limitation
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on the authority granted to the family court by Family Code section 3041.5 to order drug
and alcohol testing, it would have.
Certainly, the Legislature had procedural safeguards in mind when it
implemented this statutory provision, as it included requirements that the court order the
least intrusive method of testing, that confidentiality of the test results be maintained by
imposing civil sanctions for any breach of confidentiality, and that testing be conformed
to specific federal standards. (Deborah M. v. Superior Court (2005) 128 Cal. App. 4th
1181, 1189–1191.) Yet the Legislature imposed no temporal limitations on when any
drug testing requirement must end. Again, if the Legislature had wanted to include such
a temporal limitation in this section, it could have; clearly, it did not.
The plain and unambiguous meaning of the statute binds us; we “‘will not read
into the statute a limitation that is not there.’” (People v. Oakley (2013) 216 Cal. App. 4th
1241, 1246; see Utility Consumers’ Action Network v. Public Utilities Com. (2004) 120
Cal. App. 4th 644, 658 [“Words that are not there should not be read into a statute”].)
Accordingly, we hold that Family Code section 3041.5 grants the family court sufficient
power to authorize open-ended drug testing as a condition to further visitation or custody.
Of course, the family court can subsequently modify any order for “indefinite” drug
testing based on a change of circumstances.
D. The family court has the authority to order that a positive drug test result
would immediately trigger a reduced visitation schedule.
Mother contends that the family court’s condition that a positive drug test result
would immediately trigger a return to the reduced visitation schedule set forth in the Exit
Order violated Family Code section 3041.5. We find no merit in this argument.
Family Code section 3041.5 provides the following: “The parent . . . who has
undergone drug testing shall have the right to a 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.” The statute
only precludes adverse action on a “custody or guardianship decision” as the
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consequence of a positive test result. In this case, the Custody Order specifies that a
positive test result would affect the visitation schedule—nothing else.
“When one part of a statute contains a term or provision, the omission of that term
or provision from another part of the statute indicates the Legislature intended to convey
a different meaning.” (Cornette v. Department of Transportation (2001) 26 Cal. 4th 63,
73.) Elsewhere, Family Code section 3041.5 distinguishes between an order determining
custody and an order determining visitation. For example, the first sentence of the
statutory provision explains that “the court may order any person who is seeking custody
of, or visitation with, a child . . . to undergo testing for the illegal use of controlled
substances and the use of alcohol.” And, the penultimate sentence of the statutory
provision mandates that use of the results from the drug and alcohol testing is only for the
purpose of assisting the court in determining “the content of the order or judgment
determining custody or visitation.” Thus, the Legislature knows the difference between
the two types of orders and chose to provide an extra shield insulating custody and
guardianship decisions from frequent changes.
This is not a semantic distinction. A change in custody is not equivalent to a
change in visitation, due to the weighty interest in protecting stable custody arrangements
for a child. An alteration in a visitation schedule is less likely to cause a disruption in
established patterns of care and emotional bonds with the primary caretaker or destabilize
the sole physical custody arrangement, particularly in this case where the effect is a
reduction in the visitation schedule of the noncustodial parent, not a loss of all visitation.
Therefore, we apply the plain and unambiguous language of the statute as written: a
family court can order that a positive result from a drug test will trigger a change in the
visitation schedule. (See In re Miller (1947) 31 Cal. 2d 191, 199 [“Words may not be
inserted in a statute under the guise of interpretation”].)
Mother also argues that the Custody Order deprived her of the statutory right to a
hearing to challenge a positive rest result. Family Code section 3041.5 expressly grants a
party the right to such a hearing, if requested. “‘[W]e apply the general rule “that a trial
court is presumed to have been aware of and followed the applicable law.”’” (In re
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Julian R. (2009) 47 Cal. 4th 487, 499; People v. Montano (1992) 6 Cal. App. 4th 118, 122.)
We interpret the family court’s order in the context of the applicable statute, which we
presume the family court was fully aware of and followed. Based on the record, it
appears reasonable to conclude that the family court had no intention to abrogate the
statute. The reasonable interpretation of the Custody Order is that the reduction in
visitation would follow only a final determination on the validity of a positive test result,
including a hearing if requested by a party. Thus, nothing in the Custody Order precludes
mother from seeking a hearing to challenge a positive test result.
DISPOSITION
The order is affirmed. Costs are awarded to David H.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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