IN RE: NOAH M. (1989)

In March 1988 the San Diego County Department of Social Services (DSS) filed a Welfare and Institutions section 300, subdivision (a) ¹ petition on behalf of one-week-old Noah M.   The petition alleged that the baby was born under the influence of dangerous drugs and needed the protection of the juvenile court.   Noah's mother, Joan M., appeals from the July 21, 1988, order which declared Noah a dependent child and ordered him placed in a foster home.   She raises the interesting question of whether the hospital violated her constitutional rights when it performed a urine toxicology screen on her and her baby without explaining that positive results would be reported to Child Protective Services (CPS).   Joan argues Noah would not have been brought to the attention of the juvenile court if the hospital had not notified CPS.   In effect she asks us to adopt an exclusionary rule to insure that the alleged constitutional violations do not result in the loss of custody in this type of case.   We decline to judicially craft such a rule in the circumstances of this case.   We conclude there is sufficient evidence to support the order and accordingly affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Joan gave birth to a full-term son on March 11, 1988, at Tri–City Hospital in Oceanside.   The baby was well-nourished and displayed no symptoms of distress at birth.   Joan listed the baby's father as “unknown” on the birth certificate.

Joan is the mother of four other children.   The two oldest, Brahm M. and Aureo M., live with their natural father in Laguna Beach.   Zachary M. (age 4) and Mara M. (age 2), live in Leucadia with Joan's father, Frank B. Zachary and Mara have different fathers who are listed as unknown.

Joan had not received prenatal care from a doctor at Tri–City or in the surrounding area, having recently moved to the San Diego area from Spokane, Washington.   The hospital considered Joan a “walk-in.”   Tri–City has standing orders for a urine toxicology screen on “walk-ins” because of their potential as “high risk” mothers.   In addition, Tri–City had delivered Zachary in 1983 and he had tested positive for drugs.

Tri–City placed a hold on Noah on March 12, 1988, when the tox screen indicated the presence of amphetamines and methamphetamines in his urine.   Joan tested positive for amphetamines and valium but denied ingesting drugs of any kind before Noah's birth.   Her only explanation for the test results was that a girlfriend might have put something in her coffee.   Joan admitted taking valium for a headache two days before the baby was born.

Because Joan received no drugs during delivery which could have affected the results of the toxicology screen, the positive results suggested abuse in utero.   Valerie Orr, the social worker for Tri–City Hospital, reported the test results to CPS as required by the Child Abuse and Neglect Reporting Act (Pen.Code, § 11164 et seq.).

At the March 17, 1988, detention hearing the court appointed an attorney to represent Joan.   It also gave social worker William Sanford discretion to detain the baby with Joan's father upon a favorable home evaluation.   Meanwhile, the baby was to be detained at Hillcrest Receiving Home or a licensed foster home pending the March 28 readiness hearing.

The readiness hearing was continued to April 4 to permit appointed counsel to speak with Mr. Sanford about Noah's disposition.   Joan failed to appear at the April 4 hearing and a bench warrant was issued.   The trial took place on June 15, 1988, after several continuances.

At the dispositional hearing the court found that Noah would be endangered physically and emotionally if returned to his mother's care and concluded there were no reasonable means by which the minor's physical health or psychological health and well-being could be protected without removing him from Joan's custody.   The printed minute order stated that “[t]he minor[']s return to the parent(s) would be detrimental to the best interest of the child.”   The court declared Noah a dependent child pursuant to section 300, subdivision (a) and removed him from his parent's custody pursuant to section 361, subdivision (b) and Civil Code section 4600.   The court also ordered Joan to comply with a reunification plan which included drug rehabilitation, drug testing and participation in parenting classes.

DISCUSSION

I

Joan argues Tri–City Hospital violated her Fourth Amendment rights when it performed the urine toxicology screen without her knowledge and consent and reported the results to CPS.   Joan also challenges Tri–City's actions on equal protection grounds.

The Fourth Amendment “right of the people to be secure in their persons, houses, ․ and effects, against unreasonable searches and seizures” proscribes only governmental actions.  “․ it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’ ”  (United States v. Jacobsen (1984) 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85, quoting Walter v. United States (1980) 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410 (Blackmun, J., dissenting).)   Similarly, the equal protection clause limits only state action.  (See James v. Marinship Corp. (1944) 25 Cal.2d 721, 740, 155 P.2d 329.)

 Here there was no state action.   Tri–City was not required by law to perform urine toxicology screens.  (Compare Skinner v. Railway Labor Executives Ass'n (1989) 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (regulations of Federal Railroad Administration required private railroads to conduct breath and urine tests on railroad employees).)   There are no facts to suggest that the hospital performed tox screens as an agent of the government or with the government as a joint participant in the hospital's enterprise.   (Compare Adickes v. S.H. Kress & Co. (1970) 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (42 U.S.C. § 1983 action) and Burton v. Wilmington Pkg. Auth. (1961) 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (equal protection violation).)   The hospital social worker testified that Tri–City considered “walk-ins” to be high risk mothers.   We can reasonably assume the hospital performed the test to identify mothers and babies that might require special care.   Information regarding drug use would assist hospital physicians and staff in responding to complications that might occur during and after the birth of a baby.

II

Joan also contends that Tri–City's actions violated her constitutional right to privacy under Article I, section 1 of the California Constitution ² and her statutory right to confidentiality of medical information under Civil Code section 56.10 et seq., the Confidentiality of Medical Information Act.

 With respect to Joan's rights under the Civil Code, section 56.10, subdivision (b)(7) states that “[a] provider of health care shall disclose medical information if the disclosure is ․ otherwise specifically required by law.”   Here the report was specifically required by Penal Code section 11166.

 We also reject Joan's argument that the California Constitution prohibited Tri–City from reporting the results of the urine toxicology screen to CPS.   The privacy provision, a constitutional amendment approved by California voters in 1972, protects citizens from the improper use of information which has been properly obtained for a specific purpose, “for example, the use of it for another purpose or the disclosure of it to some third party;  ․” (White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222.)   The constitutional provision protects the individual “not merely against state action;  it is considered an inalienable right which may not be violated by anyone.”  (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829, 134 Cal.Rptr. 839.)

 However, the amendment does not purport to prohibit all incursion into individual privacy.   It simply requires that any intrusion be justified by a compelling interest.  (White v. Davis, supra, 13 Cal.3d at p. 775, 120 Cal.Rptr. 94, 533 P.2d 222.)   The constitutional right of privacy is violated where an individual's personal and objectively reasonable expectation of privacy has been infringed by unreasonable intrusion.  (People ex rel. Franchise Tax Bd. v. Superior Court (1985) 164 Cal.App.3d 526, 541, 210 Cal.Rptr. 695.)

Penal Code section 11166 requires health practitioners, teachers, and day care workers to report suspected child abuse to CPS.   With increased public awareness of child abuse, it is now common knowledge that such reports are required.   In light of these reporting requirements, mothers of newborns who test positive for dangerous drugs have no reasonable expectation of privacy as to the test results.  (Cf. People ex rel. Franchise Tax Bd. v. Superior Court, supra, 164 Cal.App.3d 526, 541, 210 Cal.Rptr. 695.)   Furthermore, even if we were to conclude Joan had a reasonable expectation of privacy in the test information obtained by Tri–City, we believe release of that information to CPS was justified by a compelling state interest in the protection of newborns from child abuse.

III

Even if we were to conclude Tri–City violated Joan's constitutional rights, once the hospital reported the results to CPS, that agency was required by law to investigate the report.  (Pen.Code, § 11166.)   Here the investigation resulted in DSS filing the section 300 petition on behalf of Noah.   We now turn to the question of whether there is substantial evidence to support the court's order.

 A parent's fundamental right to the care and custody of his or her child is protected by the requirement that before a court may award custody to a non-parent, there must be “clear and convincing proof of parental inability to provide proper care and resulting detriment to the child if it remains with the parent․”  (In re James T. (1987) 190 Cal.App.3d 58, 64, 235 Cal.Rptr. 127.)

 Viewing the evidence in a light most favorable to the respondent, the record supports the court's findings.   The supplemental social study prepared for trial stated that Joan showed no evidence of a sincere desire to be with the baby or to care for the baby.   She visited him on five occasions between March and July 1988, only one visit lasting more than 20 minutes.   During these visits Joan routinely passed the child to her father who passed him back to Joan, each holding Noah for only a few minutes.   She never attempted to feed the child or change his diapers.   Joan took seven weeks to name the baby.   Even more revealing is the evidence of Joan's inability and/or unwillingness to care for her other children.   The court expressly discounted the psychologist's evaluation which described Joan as “an intelligent, aware, open, creative, sensitive, warm and loving person” who should be a “loving ․ parent.”   The psychologist had not read the case history before he interviewed Joan and prepared his evaluation.

Mr. B.'s testimony and the Tri–City hospital records revealed Joan's history of drug use.   Like Noah, Zachary had tested positive for dangerous drugs at birth.   There is no evidence of any motivation on Joan's part to take advantage of available counseling, drug rehabilitation, parenting classes and drug testing that would assist her in assuming responsibility for Noah's care.   Maternal drug usage may constitute neglect.  (See In re Solomon L. (1987) 190 Cal.App.3d 1106, 236 Cal.Rptr. 2.)

Nor was it possible to place Noah with other members of the family.   Joan refused to name the father of the child.   Although Mr. Sanford had been impressed with Joan's father, Mr. B., at their first meeting, he later recommended against Noah being placed with his grandfather.   Sanford testified he had attempted to contact the grandfather regarding the home evaluation on at least two occasions, probably more.   He stated Mr. B. continually put him off, did not return telephone calls, and did not set up an appointment for the home evaluation.   Mr. Sanford learned that Mr. B. and his grandchildren lived in a room at a Leucadia motel but planned to move to a larger place.

Mr. B. had physical custody of Zachary and Mara for most of their lives and filed for guardianship.   It is unclear, however, whether guardianship was ever finalized.   CPS had been contacted on several occasions regarding the children in the grandfather's care, but in each case the matter was resolved within a few days.   The most recent information received through the DSS hotline was that Zachary and Mara's uncle or grandfather had offered 1,000 shares of stock in the grandfather's company if the day care center would place the children with a family.   The report alleged that Mr. B. and his son found the children to be a burden.   They interfered with the Mr. B.'s business travels.

DSS has established by clear and convincing evidence that Noah would be endangered physically and emotionally if returned to Joan's care.  (§ 361, subd. (b).)  The evidence also supports the court's finding of detriment.   (Civ.Code, § 4600;  In re B.G. (1974) 11 Cal.3d 679, 698, 114 Cal.Rptr. 444, 523 P.2d 244.)   We therefore conclude the court acted properly in declaring Noah a dependent child and authorizing placement in a foster home.

IV

 We also conclude that the court properly granted the social worker discretion to approve “reasonable and liberal” visitation.  (In re Danielle W. (1989) 207 Cal.App.3d 1227, 255 Cal.Rptr. 344.)   Furthermore, we are unable to see how Joan was prejudiced by the court's action.   She does not argue that she was denied visitation.   Indeed, she had taken little advantage of the opportunity to visit Noah once visitation was established after the March 1988 detention hearing.

DISPOSITION

Judgment affirmed.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   Article I, section 1 provides:“All people are by nature free and independent and have inalienable rights.   Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

WIENER, Acting Presiding Justice.

WORK and HUFFMAN, JJ., concur.