In re K.S.
Filed 3/25/13 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Yolo)
----
In re K.S., a Person
Coming Under the Juvenile Court Law.
C068823
(Super. Ct. No.
JV10-188)
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.
C068824
(Super. Ct. No.
JV10-189)
YOLO COUNTY DEPARTMENT
OF EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
J.S.,
Defendant and Appellant.
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
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)).
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
postdisposition 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.
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.
On September 29, 2010, the juvenile court made
the following dispositional orders: N.K.
was placed out of state with B.K., the nonoffending noncustodial 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.
name="_ftnref4" title="">[4]
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 face while continuing to “verbally assault†K.S. Stewart called the police; the dispatcher
heard mother yelling in the background.
Mother left before the police came.
K.S. was lying on the couch “in a fetal position, sobbing.â€
Mother
began her cross-examination of
Stewart at the March 4, 2011 hearing by stating that there were audiotapes of
the visits. The Department objected on
grounds of relevance and cited the anti-recording order. The court sustained the objection. Mother asserted that her tapes were made
before the court’s order and could impeach Stewart’s testimony.
said she was “simply going to submit the audiotapes†and would ask no further
questions. The court asked on what
authority she proposed to submit the tapes.
Mother cited only Evidence Code section 412.
The
Department’s counsel stated: “[
can’t be introduced without providing a transcript first to the parties.†(Italics added.) Counsel added that the Department had not
been aware that mother was audiotaping until the date the juvenile court
ordered her not to do so; therefore, it appeared the tapes had been illegally
made without the other parties’ consent and were inadmissible on that
basis. K.S.’s counsel joined in the
Department’s objection on all stated grounds.
Mother
then cited Penal Code section 632,
name="_ftnref7" title="">[7]
asserting that it amounts to “a one-party consent law in cases where conversations
are not confidential at the very outset, the visits.†Furthermore, mother asserted: “The conversations I have with social workers
are absolutely understood at the outset to be nonconfidential and even if
. . . the conversation between the parties are [sic] confidential, the party who has been taped first has to
establish harm.†Finally, mother
explained that the audiotapes would allow her to “provide an accurate
accounting to demonstrate not just things that were said but tones, the
positive nature of the visits, the fact that I did greet my children, kiss my
children, hug my children.â€
The court
reiterated its ruling, sustaining the objections to the audiotapes.
Later in
the hearing, Debra Wiegel, a family
therapist who had worked with mother and the minors before these
proceedings began, testified that mother had allowed her to hear the audiotape
of the December 30, 2010 visit.
When mother asked Wiegel if it was consistent with the social worker’s
notes on the visit, the Department’s counsel objected to any question based on
the tapes, and the court sustained the objection. Mother asserted: “The information is admissible by law.†The court reiterated its ruling. Mother continued to argue her position,
citing Evidence Code section 412, asserting that any and all statements of
adverse witnesses about mother’s behavior were or would be “crap,†and claiming
that the Department opposed “transparency.â€
The court did not change its ruling.
In
mother’s own testimony at the March 4, 2011 hearing, she cited the audiotapes
as evidence that she greeted and acknowledged K.S. at every visit. When the court asked if mother wanted to
present any further evidence, mother again demanded the admission of the
audiotapes; the court again repeated its ruling.
On April
21, 2011, the court and the parties held a trial readiness conference for the
contested six-month review hearing, set for April 27, 2011. Mother said she planned to introduce audiotapes. The court replied that mother would have to
prove the tapes were admissible through an Evidence Code section 402
hearing.
Because
some of mother’s proposed witnesses struck the court as unlikely to have
evidence relevant to this stage of the proceeding, the court required mother to
file her witness list in writing with an offer of proof as to each
witness. In addition, the court
stated: “If you’re planning to offer videotapes,
audiotapes exist of what [sic]. I don’t need a transcript. I just need to understand [the ] tape[,]
meaning give date, who’s reported, what you expect to offer that tape for, and
we’re all going to have to have [a] hearing whether or not those things are
admissible. So bring the tapes with you,
that way we can clear out housekeeping rules of evidence [sic].â€
On April
26, 2011, the Department filed written opposition to admitting any recordings,
raising the following grounds: (1) The
recorded conversations were confidential under Penal Code section 632 and the
parties who were recorded did not consent to being recorded; thus, the
recordings were illegally obtained. (2)
There was no certainty that the recordings were complete and unedited. (3) The recorded conversations had limited
evidentiary value because they would not reflect body language and nonverbal
gestures. (4) Mother had not provided
the parties with copies of any recording in advance of the hearings. (5)
Mother had not provided transcripts of the recordings, as required by
rule 2.1040 and Evidence Code section 250.
So far as
we can discern from our inspection of the record and mother’s appellate
briefing, mother did not respond coherently to these arguments in a
writing.
On April
27, 2011, the first day of the contested six-month review hearings,
mother again questioned Debra Wiegel about the audiotape of the
December 30, 2010 visit; the court again sustained the Department’s
objection. The court pointed out that,
unless authenticated, mother’s recordings were hearsay, and there was no
showing as to what recording Wiegel had heard.
The court explained to mother: “I
need to know which recording, what are the circumstances, what are your
arguments for admitting it, then I have to hear the arguments in
opposition.â€
N.K.’s
counsel stated: “Just for the record, Your Honor, I have not received any audiotape or
videotape from [mother].†(Italics added.) K.S.’s counsel objected to admitting the
recordings on grounds of confidentiality.
B.K.’s counsel joined in the objections.
The court
ruled: “At this time any of these
recordings are not admissible. [¶] If you have the recordings and
you want me to listen to them in camera and we have a hearing on the
admissibility of those tapes, we can make a full record on it, I would be happy
to do that. [¶] But what I know of
the tapes right now is: I don’t know
what Ms. Wiegel heard. I don’t know if
it is a complete recording. There’s
[the] issue of the confidentiality of those meetings. There’s the objection of all the
parties. [¶] So right now, Ms.
Wiegel is not going to be allowed to testify about her impressions based on
those audiotapes.â€
On May 6,
2011, the next day of the contested six-month review hearings, the Department’s
counsel mentioned the recordings. The
court replied that it would ask mother as to each witness in turn whether she
intended to offer such evidence. The
court noted counsel’s position that even if a specific recording was found
admissible, the parties would still need to review the recording and to have a
transcript of it.
Mother
asked Kathryn Jaeger, her court-ordered therapist, whether Jaeger knew that
mother had recorded her visits with the minors; Jaeger said she did. (Jaeger opined that it would be acceptable to
tape visits to resolve discrepancies as to what had occurred, as long as all
parties to the conversations knew they were being taped and the court approved
it.) When mother referred to “direct
evidence†(i.e., the tapes), opposing counsel objected and the court sustained
the objections.
On May
27, 2011, the fourth day of the contested six-month review hearings, mother
complained that she had called the court clerk to arrange to play her
recordings and had not been accommodated.
The court explained that the issue was not accommodation, but
admissibility.
While
cross-examining N.K., mother asked if N.K. knew that there were audiotapes of
their visits. N.K. said she did
not.
Mother
offered to submit the tapes to “demonstrate the nonconfrontational nature of
the visits.†The court asked mother to name
a specific date and the parties who were present. Mother specified the recording of the visit
of December 17, 2010, which took place in downtown Davis, stated that she
had made the recording, and identified the parties as herself, Bobbie Stewart,
and the minors. Opposing counsel renewed
all previous objections, including the objection that they had not received
copies or transcripts of any tapes.
The court
asked mother to respond as to confidentiality and lack of consent. Mother asserted, without argument or citation
to case law: “Section 632 of the Penal
Code makes it quite clear that these conversations are not remotely
confidential.†Opposing counsel replied
that the conversations were confidential even if they occurred in a public
place because they were engaged in for purposes of visitation, the minors and
Stewart did not know of or consent to the taping, and they would not have
expected others to be listening in on the conversation.
was made on the street and anyone could have overheard the conversation, “it
[(presumably confidentiality)] doesn’t even apply to all of this stuffâ€; she
also cited Evidence Code section 412 again.
The court
ruled: “The objections are all
sustained. I find that that was a
confidential communication [and] that the objections are valid.†The court added that if mother wanted to
submit any other audiotapes, there would have to be an Evidence Code section
402 hearing to determine their admissibility, but mother’s offer of proof as to
the December 17, 2010 tape did not surmount the objections.
At the
continuation of the contested six-month review hearings on June 3, 2011, while
cross-examining social worker Carrie Fleig, mother offered to submit an
audiotape to rebut Fleig’s testimony as to a meeting in February 2011 about
K.S.’s educational progress; the persons said to be recorded included mother,
Fleig, Jaeger, and several teachers.
K.S.’s
counsel objected that the parties had not been provided with the audiotape or
any transcript. Mother asserted: “Rebuttal evidence is not required to be
submitted . . . prior to— as part of discovery.†The court replied: “Even
though it’s rebuttal evidence, there does have to be a presentation of a
transcript. There does have to be a
showing that the parties at this meeting consented to this tape.†(Italics added.)
Responding
only to the second point, mother claimed that Penal Code section 632 did not
require a showing of consent for this tape.
(Asked “which portion of Section 632†she relied on, mother did not cite
any particular portion.) Mother also
asserted that she did not need to obtain the consent of all parties to the
recording because she had “informed†one party that she would be taping the
meeting. She added: “This has already been ruled on by a federal
court who found that, from a previous OCR [sic]
complaint, that actually found that that was perfectly legal under codes.â€
The court
said: “I will allow you to submit a transcript of the tape.†Mother answered: “I
don’t have a transcript.†The court
replied: “Well, then that’s the first impediment to admitting it and using it at
this hearing . . . .
[¶] . . . [¶]
[T]apes . . . don’t come in unless there’s a showing that they
don’t violate the confidentiality concerns, that it meets all the evidentiary
requirements for presentation of audiotapes, and we have an evidentiary
[Evidence Code section] 402 hearing on whether or not this is permissible. There are objections to the presentation of
these tapes. [¶] So at least for
the purposes of this particular moment since you’re not prepared to do that, as
I understand, then I’m not permitting you to introduce that tape at this time.†(Italics added.)
Mother
asked Fleig if she objected to their conversations being recorded; Fleig said
she did. Asked if she objected to visits
being recorded, Fleig said the court had ruled against it and it should not be
done secretly by one party.
Mother
asserted she would submit her audiotapes to refute the Department’s claim that
returning K.S. to her custody would be detrimental to the minor. The court repeated that there would have to
be an Evidence Code section 402 hearing on the admissibility of any tape. Mother requested such a hearing.
witnesses, after which mother stated her intention to submit her own
declaration to the court rather than continue with cross-examination of
Fleig.
At the
continuation of the contested six-month review hearings on June 15, 2011, while
questioning Phonecia Stone on redirect exam, a social worker who had supervised
visits, mother sought to question her about recording and proposed to play
tapes of the visits. The court sustained
opposing counsels’ objections and denied the request.
When the
Department’s six-month review report was offered in evidence, mother objected
to the admission of its “hearsay†about visits because her tapes had not been
admitted. K.S.’s counsel objected again
that she still had no copies or transcripts of any tapes. Mother replied that opposing counsel could
have subpoenaed the tapes or requested them in discovery. The court noted that it had “gone over and
over again†the requirements for the recordings to be presented to the court
and pointed out: “We have ruled on this before, and [counsel] is reiterating some
of the impediments to it.†(Italics
added.)
At the
hearing of June 20, 2011 (the second day of the contested six-month review
hearing in K.S.’s case), mother again questioned social worker Stone about the
tapes of the visits she had supervised and sought to offer them in
evidence. The court reaffirmed its prior
rulings.
Later,
mother offered into evidence her recording of the meeting in which Fleig and
Jaeger had taken part. After argument,
the court denied the request. As to
transcripts, mother asserted that she lacked the financial resources to make
them and hoped the ruling was not based on that alone. The court replied: “That’s
one of many grounds, but certainly not the most pertinent ground.†(Italics added.)
Notwithstanding
all of the court’s rulings up to this point, mother offered to submit her
audiotapes many more times before the contested six-month review hearing ended,
always without success. Finally, in
closing argument mother asserted that the audiotapes would show her and the
minors laughing and joking and repeatedly saying “I love you.â€
DISCUSSION
The
parties devote most of their appellate briefing to the issues arising under
Penal Code section 632. We need not reach
those issues, however, because an alternative ground on which the juvenile
court excluded mother’s audiotapes— her failure to provide copies or
transcripts to the other parties and the court—is sufficient to affirm the
court’s ruling.
A “writing†includes “every . . .
means of recording upon any tangible thing . . . , and any
record thereby created.†(Evid. Code,
§ 250.) A “duplicate†includes “a
counterpart produced . . . by mechanical or electronic
rerecording.†(Evid. Code, § 260.)
A writing
must be authenticated before it may be received in evidence. (Evid. Code, § 1401, subd. (a).) “Authentication of a writing†means proving
that it is the writing that its proponent claims it to be. (Evid. Code, § 1400.)
Rule 2.1040(b) provides as relevant:
“(1) Except as provided in (2) and (3), before a party
may present or offer into evidence any electronic sound or sound-and-video
recording not covered under (a) [deposition or other prior testimony], the
party must provide to the court and to opposing parties a transcript of the
electronic recording and provide opposing parties with a duplicate of the
electronic recording, as defined in Evidence Code section 260. The transcript may be prepared by the party
presenting or offering the recording into evidence; a certified transcript is
not required.
[¶] . . . [¶]
“(3) No
transcript is required to be provided under (1): [¶] . . . [¶]
“(C) If,
for good cause, the trial judge orders that a transcript is not required.â€
Here, in
opposing mother’s proffer of her audiotapes, the Department and other parties
asserted inter alia that she had not provided them with a transcript or a
duplicate of any audiotape, as expressly required by rule 2.1040(b). They repeatedly raised this objection, and
the court repeatedly found it valid.
Appellate
counsel does not renew mother’s arguments below against compliance with the
rule, which we therefore deem abandoned.
Instead, counsel offers two new arguments: (1) “[T]he [juvenile] court specifically
informed mother no transcript would be required.†(2) It would have been futile to comply with
the rule because “the court made it clear the controlling ground for excluding
the audiotapes was the [Penal Code] section 632 issue, so the evidence would
have been excluded even if a transcript had been provided.†We are not persuaded.
Appellate
counsel’s first argument misstates the record.
Counsel cites only to the passage set out above from the trial readiness
conference of April 21, 2011, in which the juvenile court told mother that her
written offer of proof as to audiotapes need not include transcripts because
the court merely wanted to find out, as a precondition to holding Evidence Code
section 402 hearings on the tapes, exactly what tapes mother sought to
introduce and for what purposes. By the
time the court said this, it had already sustained objections to audiotapes
which included the objection that no copies or transcripts had been furnished
to the parties, and it did so several times afterward, expressly citing this
ground for excluding the tapes.
(Notably, mother never relied on the court’s remark in the trial court
to justify her noncompliance with rule 2.1040(b).)
Appellate
counsel’s second argument puts the cart before the horse. Although the court tentatively concluded from
the parties’ arguments alone that the tapes were inadmissible under Penal Code
section 632, the court repeatedly offered to hold evidentiary hearings on that
issue. But, as the court explained, it
could not do so until mother complied with rule 2.1040(b), since complying with
the rule or showing good cause for failure to comply is a precondition to
considering the admissibility of any recordings within the rule’s scope.
that it would have been futile to comply with the rule is purely speculative.
Because the juvenile court’s ruling excluding
the tapes for noncompliance with rule 2.1040(b) was clearly correct, we reject
mother’s claim that this ruling somehow violated due process. A parent’s due process right to present
evidence in a dependency proceeding is limited to presenting relevant evidence
of significant probative value. (
321, 332; see People v. Marshall
(1996) 13 Cal.4th 799, 836.) Since
mother’s noncompliance with rule 2.1040(b) precluded any chance to rebut the
other parties’ objections to the tapes’ admissibility, she cannot show that she
was deprived of the chance to present admissible, relevant, and significantly
probative evidence.
Finally,
even though we have found no error in the juvenile court’s exclusion of the
audiotapes, any error in doing so would necessarily be harmless on this
record. Mother’s claim that the tapes
would have shown her relationships with the minors in a more favorable light,
or that they would have proved other witnesses were lying about what went on
during visits, is not only pure speculation, but is inconsistent with the
overwhelming weight of the evidence presented during the protracted six-month
review hearings— including that given by the minors themselves.
N.K.
testified that the visits with mother were “stressful†and she felt “like [she
is] just faking the entire thing, like just be as polite as you can, just get
the hour done with.†N.K. failed to come
down from Seattle for a visit in March 2011 because she felt so reluctant to
visit mother that she could not even get on the plane. This scheduled visit coincided with the point
in the criminal proceedings against mother when N.K. would have had to testify;
therefore, she did not do so. Asked if
there was something the Department could do to make her feel comfortable with
the visits, she said she “[didn’t] think so.â€
She would visit if the court said she had to, but she did not want even
phone or e-mail contact with mother; she was not comfortable visiting even with
another person present because she always expected stress and
“confrontation.â€
K.S.
testified that visits with mother were “[a]wkward and not pleasant. [¶] . . . [¶] We often argued and got upset with each
other.†She described the
February 14, 2011 visit similarly to the way Bobbie Stewart had done. The visits in public places were “worse†in
terms of mother’s behavior than those in Stewart’s office. Asked what the Department could do to make
visits go better, she replied: “Not have
them.†Throughout her testimony, K.S.
referred to mother by her first name “[b]ecause I don’t feel like she is my
mom.â€
In light
of this testimony, as well as that given by the visits’ supervisors, any possibility
that audiotapes would have shown mother’s relationship with the minors in a
more favorable light or would have exposed all other persons’ accounts of the
visits as false is exceedingly small.
For all
of the above reasons, mother has shown no grounds for reversal as to either
minor from the exclusion of her audiotapes.
DISPOSITION
The
six-month review orders are affirmed as to both minors.
BUTZ , Acting P. J.
We concur:
MURRAY , J.
DUARTE , J.
name="_ftn1" title="">[1] Further references to rules are to the
California Rules of Court.
name="_ftn2" title="">[2] Criminal charges were filed, but were
dismissed after N.K. failed to testify.
