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Name: In re L.J.
Case #: C096775
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/23/2023

The juvenile court properly excluded recordings made by Mother during visitations with the minor because minor’s counsel did not consent to the recordings and the evidence was cumulative. The minor was removed from Mother due to her substance abuse. Mother engaged in treatment and the minor was placed in her care under a plan of family maintenance. A few months later, the minor was again removed from Mother after she relapsed and participated in domestic violence. The juvenile court declined to order further reunification services and set a selection and implementation hearing. At this hearing, Mother argued the beneficial relationship exception applied. The Agency opined that Mother failed the second prong of the exception, because the quality of Mother’s visitation with the minor was poor, often resulting in the minor crying and becoming dysregulated during visits. Mother sought to enter into evidence audio/video recordings taken by Mother during visits with the minor. Minor’s counsel objected to the admission of the recordings on the grounds that there was no consent to the recording. Mother argued that she was able to consent to the recording on the minor’s behalf. The juvenile court found the recordings inadmissible. Mother appealed the termination of her parental rights and the reviewing court affirmed. Penal Code section 632 expressly forbids the recording of confidential communications without the consent of all parties and makes such recordings inadmissible. In dependency proceedings, the child’s appointed counsel serves as his or her guardian ad litem and is thus required to represent and protect the rights and best interests of the child. Because a recording made by a parent may be selectively taken to benefit only the parent’s interests, minor’s counsel, as the guardian ad litem, must consent to a recording on behalf of a minor, at least for those minors not of sufficient age and maturity to consent to such a recording on their own. Here, the minor had a reasonable expectation of privacy because there was a sign posted in the lobby of the visitation center which expressly stated that visits were not to be recorded. At the hearing, Mother had the opportunity to present testimony describing the visits and thus the recordings were also cumulative. Additionally, Mother’s claim that her selective recordings during three visits would have shown her relationship with the minor in a more favorable light was not supported by the evidence.