Monday, April 8, 2019
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Court of Appeal:
Noncustodial Parent Reasonably Ordered To Prove Decreasing Use of Marijuana
Opinion Upholds Order for Drug-Testing Based on Danger To Young Child Where Parent Is ‘Impaired’
By a MetNews Staff Writer
The Court of Appeal on Friday upheld an order that a noncustodial father submit to six drug tests to establish a decreasing dependency on marijuana.
The admitted use by the father of marijuana to treat his headaches and relieve stress was not a basis for the order by Los Angeles Superior Court Judge Pete Navarro awarding custody of A.K. to the mother. Rather, during a “food fight,” the father threw a hamburger and a cup of soda at both the mother and their son, A.K., age 1, and had, on occasion, grabbed the mother with a stranglehold.
Justice Lamar Baker of this district’s Div. Five said in an opinion that was not certified for publication:
“Here, it is undisputed Father used marijuana. Given the very young ages of A.K. and his sister at the time (one and two years old, respectively), the court did not abuse its discretion in ordering Father to undergo a limited number of drug tests to show, not the absence of any marijuana use, but merely a decreasing level of usage….[T]he juvenile court reasonably concluded that, although Father’s marijuana use was not a protective issue, Father’s continued use at then-current levels could pose a potential risk of interfering with his ability to care for A.K.”
Such a risk exists, he said, where a parent is “impaired.”
(The sister, who resided with his maternal grandmother, was not a child of the appellant.)
2003 Case Cited
The father sought to liken the situation to that present in the 2003 case of In re Jasmin C. decided by this district’s Div. Eight. There then-Justice Laurence D. Rubin (now presiding justice of Div. Five) said the inquiry was whether a juvenile court in a dependency case may “require a non-offending parent…to attend a parenting class when there is no substantial evidence that either the parent or the minor would benefit from the counseling.”
He wrote:
“We answer ‘no.’ ”
Draws Distinction
In a footnote to Friday’s decision, Baker said the appellant in the present case “is not a non-offending parent and, more critically, there is evidence in the record of marijuana use that supports the testing condition the juvenile court imposed.”
Baker said substantial evidence “justifies a judgment that, while both parents engaged in domestic violence, they posed different risks to A.K.” He noted that during the food fight, it was “only Father who used violence that directly and physically impacted A.K.” and he had engaged in violence conduct toward the mother.
Rubin, along with Justice Dorothy C. Kim, joined in the opinion.
The case is In re A.K., B290653.
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