In Re SW

California Court of Appeal Apr 11, 1978 No. 50581Published

Before: Files

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Holding. Welfare and Institutions Code section 5328 does not override the psychotherapist-patient privilege established in the Evidence Code, though the trial court's error in admitting privileged records was harmless because other evidence independently supported the dependency judgment.

Issues

Does Welfare and Institutions Code section 5328 authorize the disclosure of records otherwise protected by the psychotherapist-patient privilege in juvenile dependency proceedings?
Was the trial court's erroneous admission of privileged records prejudicial error requiring reversal?

Disposition. affirmed

Quotations verified verbatim against the opinion

“We have concluded that section 5328 does not override the privilege; and that the trial court erred in refusing to consider whether the records were privileged under the Evidence Code”

“Subdivision (f) excepts necessary court use from the general prohibition of section 5328, but it does not authorize a court to order disclosure of matter which the Evidence Code makes privileged.”

“It is not reasonably probable that a retrial on this kind of record would result in a different finding. A reversal of the judgment is not required.”

79 Cal.App.3d 719 (1978) 145 Cal. Rptr. 143 In re S.W. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,

ROSEMARY W., Defendant and Appellant.

Docket No. 50581. Court of Appeals of California, Second District, Division Four.

April 11, 1978. [720] COUNSEL

Sassoon Sales, under appointment by the Court of Appeal, for Defendant and Appellant.

John H. Larson, County Counsel, and Sterling R. Honea, Deputy County Counsel, for Plaintiff and Respondent.

[721] OPINION

FILES, P.J.

Rosemary W. appeals from a judgment made November 2, 1976, declaring her two sons to be dependent children of the court pursuant to Welfare and Institutions Code section 600, subdivisions (a) and (d) (now Welf. & Inst. Code, § 300, subds. (a) and (d)), and determining that custody should be given to someone other than a parent.

(1a) The legal issue requiring discussion is the admissibility of the records of Central City Community Mental Health Facility relating to the mother's treatment as an outpatient. Her counsel's objection, based upon the psychotherapist-patient privilege defined in section 1012 of the Evidence Code, was overruled upon the theory that Welfare and Institutions Code section 5328, subdivision (f) (a part of the Lanterman-Petris-Short Act, under which the treatment was provided), authorized the use of those records in evidence. We have concluded that section 5328 does not override the privilege; and that the trial court erred in refusing to consider whether the records were privileged under the Evidence Code; but the error does not require a reversal because other evidence compelled the decision to make the children dependents of the court.

In Re SW

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FILES, P.J.

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