Opinion
A151651
02-01-2018
ROBERT T., Plaintiff and Appellant, v. B. M., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. VF09455656)
This appeal arises from a child custody and visitation dispute between appellant Robert T. and respondent B.M. Robert contends when he sought legal custody of his daughter, B.M. accused him of drug and alcohol abuse. After a hearing, the trial court ordered Robert to submit to a hair follicle test. On appeal, Robert argues the trial court erred in ordering him to submit to the hair follicle drug test over his objection. Because the law is clear a trial court cannot compel a party to a custody or visitation proceeding to submit to a hair follicle drug test under Family Code section 3041.5, we find the trial court erred. We reverse the order directing Robert to submit to and pay for a hair follicle drug test and related visitation orders.
All statutory references are to the Family Code.
I. BACKGROUND
The following summary of factual and procedural history is taken from the very limited record on appeal. The parties have been involved in child custody proceedings since June 2009, when Robert filed a petition to establish a parental relationship with his daughter, R.M., seeking joint legal and physical custody with the child's mother (B.M.) and "reasonable visitation" rights.
In August 2016, Robert apparently filed a request for an order from the family court related to custody and visitation rights. A hearing on Robert's request was held on January 6, 2017. At the hearing, the trial court discussed with the parties a mediator's report and whether Robert had agreed to pay for drug testing. Robert told the judge he agreed to take and pay for a urine test. When the judge asked whether he had ever taken a hair follicle test, Robert responded he had not, and said, "According to the Court, they can't afford me to take one [sic], and it's really expensive." After further discussion of the cost of a hair follicle test, Robert reiterated he would agree to a urine test, but the trial court ordered him to take a hair follicle test and pay half the fee (with B.M. to pay the other half).
Because the request was not included in the clerk's transcript, we do not know the precise nature of the order sought.
On April 19, 2017, the trial court filed its findings and order after hearing, granting custody of the child to B.M. The court ordered Robert to submit to and pay half the cost of a hair follicle test. The order further provided the child's weekend visits with Robert would be terminated until the hair follicle test was completed, but if the test results were negative, Robert was to resume his "every other weekend visits," which would be increased after three such visits. If test results were positive, he would have supervised visits and be required to enter a licensed drug and alcohol counseling program.
II. DISCUSSION
In the heading of his argument section in his opening brief, Robert states he "refused to take a hair follicle drug test . . . thus, giving no authority to the court to order such test other than a urine drug test." In the body of his argument, Robert cites Deborah M. v. Superior Court (2005) 128 Cal.App.4th 1181, 1191-1194 (Deborah M.) and section 3041.5.
Robert also challenges the trial court's order on the ground there was no substantial evidence of drug or alcohol abuse in support of the testing order, but because we decide the trial court erred in ordering hair follicle drug testing as a matter of law, it is unnecessary to reach that issue.
Section 3041.5 expressly states that a court ordering drug testing in a custody or visitation proceeding "shall order the least intrusive method of testing for the illegal use of controlled substances or the habitual or continual abuse of alcohol" and if substance abuse testing is ordered, it "shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees." In Deborah M., the appellate court construed that language to require any court-ordered drug testing in custody and visitation proceedings to conform to federal drug testing procedures and standards. (Deborah M., supra, 128 Cal.App.4th at pp. 1191-1194.) Noting the federal standards only allowed for urine tests, the court found the trial court had erred in ordering mother to submit to hair follicle testing. (Deborah M., at pp. 1193-1194.)
The Deborah M. court noted as of the date of its publication, the federal government only allowed urine tests under the Mandatory Guidelines for Federal Workplace Drug Testing Programs (the Mandatory Guidelines). (Deborah M., supra, 128 Cal.App.4th at p. 1191.) Although the Mandatory Guidelines have since been revised, neither the guidelines in effect at the time of the trial court's ruling (effective Oct. 1, 2010) nor the current guidelines (effective Oct. 1, 2017) allow for hair follicle drug testing. (73 Fed. Reg. 71858-71859, 71879-71880 (Nov. 25, 2008) [establishing revised standards for urine testing—the only approved specimen under the Mandatory Guidelines—and noting the U.S. Dept. of Health & Human Services needed to further examine proposed revisions addressing hair, oral fluid, and sweat patch specimens in federal testing programs]; 75 Fed. Reg. 22809-22810 (Apr. 30, 2010) [changing effective date to Oct. 1, 2010]; 82 Fed. Reg. 7920, 7925, 7946-7947 (Jan. 23, 2017) [guidelines effective Oct. 1, 2017 provide for urine testing and "authorized" alternate specimen types but note "[r]eferences to an alternate specimen are not applicable until final Guidelines are implemented for the use of the alternative specimen matrix"]; 80 Fed. Reg. 28054 (May 15, 2015) [notice of proposed revisions to Mandatory Guidelines regarding testing of oral fluid (OFMG)]; 80 Fed. Reg. 34921-01-34922 (June 18, 2015) & 80 Fed. Reg. 30689-02-30690 (May 29, 2015) [requests for information regarding hair specimen drug testing regarding potential use of hair specimens for drug testing].)
After review of the record, including the reporter's transcript of the hearing, we determine the trial court here made a similar error. When asked about paying for the drug testing, defendant stated he agreed to a urine test. After the trial court asked him whether he had ever taken a hair follicle test and ordered him to pay half the cost of one, Robert again stated, "I would agree to a urine test." Because Robert refused to do the hair follicle test and the trial court could only order him to do a urine test under section 3041.5, we conclude the trial court erred in ordering Robert to submit to a hair follicle drug test.
III. DISPOSITION
The trial court's April 19, 2017 order requiring Robert to submit to and pay for a hair follicle drug test, and related orders regarding visitation rights dependent on the results of the hair follicle test are reversed. (See final page of Apr. 19, 2017 order, paragraphs 1-8.) The matter is remanded to the trial court to reconsider its orders regarding drug testing and Robert's visitation rights in light of this opinion. Appellant is entitled to costs on appeal.
Robert further argues "any other judgment directly involved with the hair follicle test was wrongful. [Such] judgments include visitation rights, legal and physical custody, child support, lawyer fees and restraining order." Though Robert contends such "judgments must be reversed or vacated," he does not make any substantive arguments as to such "judgments" nor provide citations to them in the record. (Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must support any reference to a matter in record with citation to volume and page number of the record where the matter appears].) Accordingly, we reverse only the portion of the order directing Robert to obtain (and pay for) a hair follicle test and the visitation orders dependent on the results of the hair follicle test. --------
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.