Filed 2/1/18 Robert T. v. B.M. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


ROBERT T.,
Plaintiff and Appellant,
v.
B. M.,
Defendant and Respondent.
A151651

(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.
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).
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.
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.)
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.








_________________________
Margulies, J.




We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.



















A151651
Robert T. v. B.M.