HEIDI S., Plaintiff and Appellant, v. DAVID H., Defendant and Respondent.
No. B263933
Second Dist., Div. One.
July 28, 2016
1150
Opri & Associates and Debra A. Opri for Plaintiff and Appellant.
Kearney | Baker and Gary W. Kearney for Defendant and Respondent.
OPINION
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 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
BACKGROUND
I. Relevant statutory provisions
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
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
Father‘s declaration then reminded the family court that the court-ordered expert had requested a Department of Justice (DOJ) report concerning
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 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 Further, because mother relied on the same seven-month-old letter of recommendation previously filed in the dependency
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 whom 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 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 9:00 a.m. Saturday
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 9:00 a.m. Saturday through 6:00 p.m. Sunday; 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 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 9:00 a.m. Saturday through 6:00 p.m. Sunday and every Wednesday “from after school to 7:00 pm.” 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
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 issued the order and modification of the order is in the best interests of the child.” (
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 child, 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
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 [74 Cal.Rptr.3d 803].) In fact, the relevant statutory provision,
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 child, 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.
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 permitting a greater increase in her visitation with the child 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 (
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 [38 Cal.Rptr.3d 610, 127 P.3d 28].) 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.” (
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.
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 child, 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 child was in her care without a monitor‘s supervision. Finally, the court expressed “continuing concern” that 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
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 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 child also serves the best interest of the child.8 Thus, we find no abuse of discretion regarding the family court‘s ruling on this point.
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
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
The parties do not argue that this family court proceeding (case No. BF044161) falls outside of
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
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
B. The family court properly made the judicial determination required by Family Code section 3041.5.
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
At the hearing, discussing first the incident on November 5, 2012, the family 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
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
Further, mother alleges that
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. 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.” (
Thus, we reject mother‘s contention that the family court must consider only evidence of events 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
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, 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
The plain language of
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 [27 Cal.Rptr.3d 757].) 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 [157 Cal.Rptr.3d 143]; see Utility Consumers’ Action Network v. Public Utilities Com. (2004) 120 Cal.App.4th 644, 658 [15 Cal.Rptr.3d 597] [“Words that are not there should not be read into a statute“].) Accordingly, we hold that
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
“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 [109 Cal.Rptr.2d 1, 26 P.3d 332].) Elsewhere,
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
Mother also argues that the Custody Order deprived her of the statutory right to a hearing to challenge a positive test result.
DISPOSITION
The order is affirmed. Costs are awarded to David H.
Rothschild, P. J., and Chaney, J., concurred.