A California Superior Court judge ordered mandatory drug tests for a father who hoped to begin home visits with his two children, aged two and four. When he admitted that he occasionally used marijuana, a legal substance in the state, the hearing judge told him, “You can smoke pot, or you can be a dad. But it’s really hard to do both.” If he wanted to spend time with his kids, the judge said, he would have to participate in ten random or on-demand drug tests. The Court of Appeals reversed the judge’s drug testing order but affirmed her other visitation conditions.

A three-judge panel of Division One of the Second District Court of Appeal issued a non-published opinion in In Re Bran et. al., Persons Coming Under the Juvenile Court Law, Los Angeles County Department of Children and Family Services (DCFS) v. Brandon S., the father. The unanimous, unpublished opinion was authored by Justice Gregory Weingart and issued on December 21.

Weingart began his ruling with a lengthy recap of the disturbing events that led to the hearing. When Brandon S. began the process of securing visitation rights, he explained to the DCFS social worker that he had no contact with his children for two years because their mother refused to allow him to see them. He claimed that the mother “drank excessively and became aggressive.” Her domestic violence, which included attacks on him with pepper spray and attempts to hit him with her car, led to their separation approximately three years ago. He also reported that the mother once left the children unattended on his doorstep. He admitted that he “took no steps to protect the children” after the separation.

DCFS conducts home visits when a parent requests a new visitation allowance. A social worker visited Brandon’s home and did not observe any drug paraphernalia in his studio apartment. He did, however, tell her that he “smoked marijuana a few times a week.” An unidentified “collateral contact” told the social worker that Brandon used illegal drugs, which he denied. He also had no criminal history.

Based on this sketchy evidence, in July 2020, DCFS concluded that placing the children with their father “would be detrimental” to them. The report pointed out that Brandon had not “demonstrated appropriate parental protectiveness nor judgment in taking meaningful consistent action to locate his two very young children, when (he) was on notice that Mother engaged in excessive alcohol drinking (and) demonstrated violent behaviors.” DCFS suggested that the court order random drug tests because “marijuana use by a single parent of children of tender years, without a support system, is not inherently safe.”

At the time of Brandon’s requested visit, the children were living with an aunt because their mother had been sentenced to probation for a period of three years, with 38 days in Los Angeles County Jail. She was also ordered to complete a 52-week domestic violence program. After the father's hearing, the children were removed from their relative, and DCFS was given temporary custody. Both parents were allowed monitored visits.

The following month, Brandon told DCFS that he wanted his children and he agreed to adhere to all court-ordered programs. The first visit was to be in early September, but when DCFS tried to deliver the children to Brandon, he was not there. Similar incidents involving unanswered phone calls, questionably scheduled visits, and accusations from each parent, took place each month until May 2021 when Judge Debra R. Archuleta issued the mandatory drug test order that prompted the appeal. In addition to the drug tests, she also ordered that the children could have three hours of monitored visits three times a week. The father failed to show up for the scheduled visits and could not be reached by phone because “he had a lot going on.”

After this factual summary, Justice Weingart explained the appellate court’s standard of review that must be used to determine whether the juvenile court judge had abused her discretion. He said this would only occur if the trial judge made “an arbitrary, capricious, or patently absurd determination.” Using this standard, he agreed that the mandatory drug testing order was made in error. He found “no evidentiary basis” for the order because there was no record that the father either abused the drug or used it in the presence of his children. He concluded, “Thus, evidence establishes only that Father occasionally used marijuana, a legal substance, and nothing more.” In addition, there was no evidence that drug tests were necessary to protect the children.

The matter of monitored visits, however, prompted a different conclusion. Weingart first noted that DCFS has the “discretion to craft visitation orders that balanced Father's interests in visitation with the best interests of his children.” Here, he wrote, there is a “rational basis” for the monitoring order. Brandon S. had been absent for most of his four-year-old’s life and for all of his younger child’s. Despite the mother’s refusal to allow him to see his children, the opinion said that Brandon had made “minimal effort” to be part of his children’s lives.

Brandon has a chance to do better now that he can spend quality, and hopefully sober, time with his children.