Court of Appeal:
Mother Had No Right to Admission of Secret Recordings
Third District Says Due Process Not Violated Where Juvenile Court Barred Recordings of Mother’s Visits With
Dependent Child in Effort to Establish That Beneficial Parental Relationship Exception Applies
By a MetNews Staff Writer
The Third District Court of Appeal held yesterday that a juvenile court did not transgress the due process rights of a mother in excluding from evidence audio and video recordings she had made interacting with her six-year-old child during a visitation in an effort to show that her parental ties with the child, who had been declared a dependent, not be severed.
Under Welfare & Institutions Code §366.26, where it is shown “by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” That, however is subject to an exception where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
The appellant, M.B., contended that retired Los Angeles Judge Candace J. Beason, sitting as a judge assigned to the Lassen Superior Court, denied her due process rights by blocking her from establishing, the recordings, the applicability of the beneficial parental relationship exception.
Assigned Judge’s Opinion
Rejecting that contention, Yolo Superior Court Judge Samuel McAdam, sitting assignment to the Court of Appeal, pointed out that Penal Code §632 prohibits the recording of confidential communications without the consent of both (or all) parties and renders such recordings inadmissible “in any judicial, administrative, or other proceeding.”
“Here, mother contends she was able to consent to the recordings on the minor’s behalf. She is incorrect. In dependency proceedings, the child’s appointed counsel serves as his or her guardian ad litem….There is no indication that minor’s appointed counsel was informed about these recordings prior to the time when mother attempted to introduce them into evidence. Further, the minor’s counsel denied any consent and objected to their introduction.
“Mother further argues that there is no statutory provision limiting a parent’s right to consent to video recording her child. She misunderstands the law of juvenile dependency. Here, the minor had been removed from her custody and care, was adjudged a dependent child of the court, and was appointed counsel to act on her behalf.”
Confidentiality of Communications
M.B. also argued that the communications were not confidential inasmuch as they were monitored. McAdam noted that the visitations took place in private rooms; that a social worker was on the other side of the door; and a sign in the lobby of the building instructed that recordings not be made.
“Accordingly, these visits qualified as confidential communications between mother and the minor,” the jurist wrote.
“Even absent authority under Penal Code section 632 to exclude the audio/video recordings, the juvenile court had broad authority to determine the admissibility of this evidence.”
The judge said the recordings were “cumulative of other evidence before the juvenile court” and declared:
“Even if mother’s due process rights had been violated, which we conclude they were not, mother cannot demonstrate prejudice here.”
The case is In re L.J., 2023 S.O.S. 1118.
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