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In Re K.S., A Person Coming Under the Juvenile Court Law. v. J.S

March 25, 2013

IN RE K.S., A PERSON COMING UNDER THE JUVENILE COURT LAW.
YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
J.S., DEFENDANT AND APPELLANT.
IN RE N.K, A PERSON COMING UNDER THE JUVENILE COURT LAW.
YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
J.S., DEFENDANT AND APPELLANT.



(Super. Ct. No. JV10-188) (Super. Ct. No. JV10-189)

The opinion of the court was delivered by: Butz , Acting P. J.

In re K.S.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

J.S. (mother) appeals from six-month review orders by the juvenile court as to her minor daughters K.S. and N.K. (Welf. & Inst. Code, §§ 366.21, subd. (e), 395.) The court continued K.S.'s placement in foster care and ordered further reunification services to mother, including conjoint counseling for mother and K.S. As to N.K., who was placed with her father B.K. at disposition pursuant to Welfare and Institutions Code section 361.2, subdivisions (a) and (b)(1), the court granted sole legal and physical custody to B.K. and terminated jurisdiction.

On this appeal, mother contends only that the juvenile court abused its discretion and violated due process by refusing to admit audiotapes made by mother and offered by her as impeachment evidence. According to mother, the court's error was prejudicial because this evidence, if admitted, could have "painted a very different" (more favorable) picture of the relationship between her and the minors; therefore, she requests remand of both minors' cases for rehearing.

Respondent Yolo County Department of Employment and Social Services (the Department) replies that the audiotapes were properly excluded because (1) the communications recorded were confidential and the other parties did not consent to being recorded (Pen. Code, § 632); (2) the audiotapes might have been incomplete or selectively edited; (3) they were minimally probative and would have consumed undue time (Evid. Code, § 352); and (4) mother never provided the parties with copies or transcripts of the audiotapes (Evid. Code, § 250; Cal. Rules of Court, rule 2.1040(b)).*fn1

We conclude the Department's last point is sufficient to uphold the juvenile court's rulings. Therefore, we shall affirm on that basis without reaching the parties' other arguments.

FACTUAL AND PROCEDURAL BACKGROUND

We decided mother's appeal from the juvenile court's dispositional and post-disposition status review orders in a prior opinion, of which we take judicial notice. (In re K.S. (Feb. 14, 2012, C066512) [nonpub. opn.].) We generally draw the facts from our prior opinion for the period covered therein.

Because the single issue raised in the present appeal does not go to the substance of the juvenile court's rulings, we focus on the facts relevant to that issue and do not attempt to give a full summary of the proceedings' complex history.

In April and May 2010, when N.K. was 15 years old and K.S. was 14 years old, the Department alleged that mother had repeatedly used a dangerous form of corporal punishment as "discipline" on both minors, and might be facing criminal charges as to N.K.*fn2 The juvenile court took jurisdiction over the minors in June 2010.

It soon became apparent that mother made a practice of tape-recording persons involved in the case, even if they had not consented to such recording. When a protective custody warrant was issued as to N.K., mother attempted to secretly record the warrant's execution. K.S. reported that mother routinely recorded her interactions with the minors. Mother admitted that she recorded her conversations with the minors and the social worker, among others, ostensibly to protect herself against false accusations.

At the start of the dispositional hearings, the juvenile court informed mother that tape-recording a person without permission is a crime in California. Thereafter, the court learned that mother had tried to record the courtroom proceedings surreptitiously. After granting her counsel's request to be relieved, the court allowed mother to proceed in propria persona.*fn3

On September 29, 2010, the juvenile court made the following dispositional orders: N.K. was placed out of state with B.K., the nonoffending non-custodial parent. K.S. (who was not B.K.'s biological or adopted child) was to remain in foster placement. As to both minors, the court ordered reunification services for mother, including programs in domestic violence, anger management, parenting, counseling "as approved by the Department," and conjoint counseling with the minors after the parties had agreed on a counselor for that purpose. The court also ordered visitation of up to two hours a week as to K.S. and at least four hours per month as to N.K.

An early review hearing as to visitation and conjoint counseling was set for November 3, 2010. By that time, however, the juvenile court judge (Judge Basha) had recused himself, and the scheduled hearing did not take place on that date. In a report filed for the aborted hearing, the Department stated that K.S. did not want to do conjoint counseling except as a substitute for visitation and K.S.'s therapist did not think K.S. was ready for conjoint counseling.

At subsequent hearings, the juvenile court (Judge White) ordered that conjoint counseling would take place only when K.S.'s therapist considered it appropriate. The court also maintained the existing visitation orders.*fn4

On January 19, 2011, the juvenile court ordered: "[M]other is not to record any interactions with either minor absent an express order of this court." The court specified that violation of the order would result in contempt of court. The court also admonished mother not to record conversations with any other persons.

The juvenile court held a hearing on March 4, 2011, on the Department's request to modify visitation. Despite the history of court orders and admonitions to mother against recording, at this hearing and almost every later hearing mother offered her self-made audiotapes in evidence to rebut adverse testimony.

According to Bobbie Stewart, who supervised visits from mid-December 2010 through mid-February 2011, the first two visits, which occurred in public places in downtown Davis, went poorly because mother did not respond to the minors' statements or feelings; the second visit ended with the minors walking away and mother becoming extremely angry with Stewart. Stewart decided to conduct further visits in her office.

On December 19, 2010, K.S. became ill during the visit; there were no verbal greetings or goodbyes. On January 7, 2011, there were no verbal or physical greetings; mother did not respond to any topic of conversation K.S. brought up or respect any boundaries K.S. tried to set. On January 10, 2011, mother brought food, which was not the kind K.S. had requested, then argued with K.S. about her desire to get a driver's permit. On January 16, 2011, mother tickled K.S. after being told to stop, then ordered K.S. to take a time-out (in violation of previously explained rules for visitation) and got angry when K.S. would not do so. On February 14, 2011, after a highly emotional argument between mother and K.S., Stewart decided to end the visit. She asked mother to leave because mother was escalating the tension. Mother not only refused to leave, but put her hand in Stewart's ...


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