Filed 3/12/15 In re D.J. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


In re D.J., a Person Coming Under the                                B257573
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. DK04511)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

M.H.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of the County of Los Angeles,
Annabelle Cortez, Judge. Dismissed.
         Michele Anne Cella, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
                                         ________________________
       M.H. (father) appeals from the dependency court’s jurisdictional finding that his
daughter, D.J., born in March 2014, is a minor described by Welfare and Institutions
Code section 300, subdivision (b), because father’s mental and emotional problems
render him incapable of providing regular care and supervision.1 Father contends that the
court erred by permitting disclosure of his mental health records to the Los Angeles
County Department of Children and Family Services (Department) and admitting those
mental health records into evidence at adjudication. He further contends that without his
medical records, the Department did not present substantial evidence to support the
court’s jurisdictional finding. Father does not appeal the jurisdictional findings as to
K.J.’s (mother) substance abuse and mental health issues, and she is not a party to this
appeal. In addition, father does not appeal the court’s dispositional orders.
       Regardless of whether the court erred in permitting disclosure and admission of
father’s medical and mental health records, jurisdiction will still exist based on the
sustained allegations against mother. Accordingly, father’s contentions on appeal are not
justiciable, and his appeal is dismissed.


                  FACTUAL AND PROCEDURAL BACKGROUND


       On April 9, 2014, the Department took infant D.J. into protective custody from the
hospital where mother had tested positive for marijuana at the time of D.J.’s birth. The
Department filed a petition alleging that mother had a history of substance abuse, was a
current user of methamphetamine, and had mental and emotional problems including a
psychotic disorder. The petition contained no allegations against father. The court
detained D.J. and ordered monitored visits for mother and father.



       1All statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.


                                              2
       When the Department interviewed father on May 13, 2014, it received information
that raised concerns regarding father’s ability to care for a young infant. Father had been
convicted on misdemeanor charges for cruelty to animals in 1998, but he explained that
he had not been directly involved in the stomping death of a dog. Father had received
supplemental security income (SSI) in the amount of $850 a month for 10 years, but he
did not remember why he received SSI. Father denied suffering from any mental health
issues currently, but admitted that he had been hospitalized for mental health issues twice
in 2013. According to father, he was first involuntarily hospitalized in the summer of
2013 when law enforcement found him in public without his clothes and considered him
to be combative. He claimed he had just been working without a shirt. Father said he
spent four days in the hospital, and was discharged without any treatment plan or having
been prescribed any psychotropic medication. The second hospitalization acknowledged
by father occurred in December 2013, after father got into a fight with his cousin, and
paternal grandmother (father’s mother) insisted he go to the hospital. Father was
voluntarily hospitalized; he could not remember the details, but believed he was at
Charter Oaks Hospital. The Department observed father to have cognitive difficulties. A
paternal aunt assisted father in day-to-day responsibilities, arranged visitation with D.J.,
and transported father to the visits. The Department wanted to obtain police reports and
more information regarding father’s hospitalizations in order to make a better judgment
about father’s ability to care for D.J. The Department’s jurisdiction/deposition report,
submitted on May 15, 2014, stated, “Although [father] is currently considered a non
offending father, the [D]epartment has concerns pertaining to [his] ability to
appropriately care for [D.J.] . . . [Father] has had two psychiatric hospitalization[s].”
The report goes on to say, “If it is determined at the conclusion of the above assessments
and evaluations that [father] has mental health and or developmental concerns, the
[D]epartment will file a first amended petition . . . .”
       On May 27, 2014, the date originally scheduled for an adjudication hearing, the
Department received a packet of documents in response to a May 20, 2014 subpoena to
Charter Oaks Hospital, and requested to continue the adjudication hearing to permit the


                                               3
Department to file a first amended complaint with jurisdictional allegations against
father. The Department’s counsel provided copies of the hospital records to all counsel,
stating, “The Department just received about an inch and a half thick worth of documents
this morning, before lunch, regarding [father’s] mental health and substance abuse issues.
[¶] I anticipate the Department will be filing a first amended petition [regarding him].”
Father was present in court, but neither he nor his counsel objected to the disclosure of
the medical records at the time.
       One week later, on June 3, 2014, father filed a motion in limine to suppress and
exclude admission of his medical and mental health records, arguing that he had not
authorized disclosure of such records. In his motion, he argued that the records were
protected by the psychotherapist-patient privilege under Evidence Code section 1010, et
seq. He also argued that section 5328 limited disclosure of the records because they were
obtained in the course of providing mental health services to father. Finally, father
argued that “[e]ven if the court finds that a valid waiver [of the psychotherapist-patient
privilege] occurred, it ‘should exercise its discretion in excluding such evidence at trial
unless its probative value is substantially outweighed by the harm that may be caused by
public disclosure.’”
       On June 11, 2014, the Department filed its opposition to father’s motion in limine,
arguing that by failing to object to the disclosure of his mental health records, father had
waived any privilege attached to those records, and the court had authority under section
5328 to permit disclosure of records “as necessary to the administration of justice.” (§
5328, subd. (f).)
       Also on June 1, 2014, the Department filed a first amended complaint, adding
count b-3, which alleged father “has mental and emotional problems including a
diagnosis of Paranoid Schizophrenia, Bipolar Disorder Manic with psychosis,
Schizoaffective disorder and Psychosis NOS, which renders father incapable of providing
regular care and supervision of [D.J.] On 06/06/2011, 11/27/2012 and 12/25/2013, the
father was hospitalized for evaluation and treatment of the father’s psychiatric condition.
On 06/06/2011, the father was also diagnosed with Paranoid Schizophrenia Cannabis


                                              4
abuse. Such mental and emotional condition on the part of the father endangers [D.J.’s]
physical health and safety and places [D.J.] at risk of physical harm and damage.”
       At the June 25, 2014 hearing on father’s motion in limine, the court reviewed the
subpoenaed documents in camera and concluded most were subject to disclosure under
section 5328, because the compelling interest in protecting D.J. outweighed father’s right
to privacy. The court also noted that the safety of the child is paramount in dependency
proceedings. The court identified those documents that were not subject to disclosure by
tabbing them, and ordered the Department’s counsel to retrieve them from the other
counsel to whom they had been distributed. The court deferred the question of
admissibility of the documents to the adjudication hearing.
       On June 27, 2014, the Department filed a “Last Minute Information” report,
attaching the mental health records that the court had found subject to disclosure. The
documents reveal that on June 6, 2011, father was placed on a 72-hour involuntary hold
under section 5150 because he had not been compliant with his psychotropic medications
for two months; was violent towards his family; and had been “pushing” family members
and struck his mother in the mouth. He was diagnosed with paranoid schizophrenia and
cannabis abuse, and his involuntary hospitalization was extended to 14 days because he
had been unresponsive to treatment and was determined to be unsafe to be discharged
after the 72-hour hold. He was discharged on June 13, 2011, with instructions to attend a
“partial hospital program” at the hospital, and continue to take his medications. Father’s
prognosis was “[f]air if [he] can remain compliant with all outpatient treatment
recommendations and remain sober.”
       On November 27, 2012, father was brought to the hospital by police for being a
danger to others after being found in a parking lot wearing only his underwear. When
father was approached by the officers, he told them he had thrown his clothes into a
fountain and that he wanted to kill someone that night. Father was diagnosed with
schizoaffective disorder and marijuana dependence. He was discharged with directions
to follow up with outpatient services, and it was believed he “should do well, if he



                                             5
remain[ed] complian[t] with medications, remain[ed] sober, and remain[ed] compliant
with treatment recommendations.”
       On December 25, 2013, father was brought to the hospital by his mother and
voluntarily admitted himself to the hospital. According to father’s mother, father had not
slept for three days, had been “manic” for a few days, had a physical altercation with his
cousin, and had put his hand through a car window. On the first day of father’s
admission into the hospital, he was very “manic;” cursing, screaming, disrobing, running
in the hall, and tearing a mattress. Father was determined to be a “risk of harm to
others.” The hospital noted that, among other things, father had a “[h]istory [of]
homicidal assaultive ideations or behavior,” was “[i]mpulsive/unpredictable,” and made
“[t]hreatening gestures.” Father was diagnosed with “Bipolar disorder, severe, manic
with psychosis. Polysubstance dependence.” The hospital gave him psychotropic
medications and various forms of therapy. His discharge plan was to follow up with a
psychiatrist and a primary care physician, and to participate in programs.
       The Department reported that father’s family members were reluctant to make any
statements regarding father’s mental stability. Maternal great great grandmother stated
that father’s mental health issues were apparent. Paternal aunt stated that on one
occasion, father was released to her by the hospital because he was a danger to himself
and others. She also reported that the paternal grandmother and other paternal relatives
refused to discuss father with the Department.
       At the June 27, 2014 contested jurisdiction and disposition hearing, the
Department entered into evidence its jurisdiction/disposition report as well as the last
minute information, attaching the mental health records the court had previously ordered
subject to disclosure under section 5328. Father’s counsel objected to the disclosure and
admissibility of the records on the ground of father’s right to privacy, arguing that father
had not consented to the disclosure of the records for any purpose. The court repeated its
finding that the records were disclosable under section 5328, and also found them
admissible because they were relevant to the proceedings. Father entered into evidence a
letter evidencing his participation in a 12-week parenting course. Father called paternal


                                              6
aunt, who testified that father had a great relationship with her family and she denied
being aware of any history of mental illness.
       After considering all the evidence and finding paternal aunt’s testimony not
credible, the court sustained both counts (b-1 and b-2) against mother, and count b-3
against father, finding his mental and emotional problems rendered him incapable of
providing regular care and supervision of D.J., endangered D.J.’s physical health and
safety, and placed D.J. at risk of physical harm and damage.
       With respect to disposition, father agreed to an order that he take a parenting class,
attend individual counseling, and submit to a mental health evaluation with the evaluator
having access to his mental health records. He did not agree to an evaluation under
Evidence Code section 730. The court declared D.J. a dependent, found by clear and
convincing evidence under section 361, subdivision (c) there would be a substantial risk
to D.J. if she were returned to the parents, removed the child from parental custody, and
ordered monitored visits and reunification services for the parents, including a section
730 evaluation over father’s objection. Father filed a timely notice of appeal.


                                      DISCUSSION


       Father challenges only the jurisdictional finding based on his mental and
emotional problems, contending that absent the erroneous disclosure and admission of his
mental health records, there was not substantial evidence to support count b-3 of the
petition. He does not challenge the court’s jurisdictional findings on counts b-1 or b-2,
which relate to mother’s substance abuse and mental health. Because neither parent has
appealed the court’s exercise of jurisdiction under counts b-1 and b-2, relating to
mother’s drug use and mental health problems, we decline to exercise our discretion to
address whether the court erred in ordering disclosure and admission of father’s mental
health records, and whether substantial evidence supports the jurisdictional findings
against father. (In re I.A. (2011) 201 Cal.App.4th 1484, 1490-1492.)



                                             7
       The court will retain jurisdiction based on the jurisdictional findings related to
mother, regardless of the outcome on father’s appeal. “‘[A] jurisdictional finding good
against one parent is good against both. More accurately, the minor is a dependent if the
actions of either parent bring [him] within one of the statutory definitions of a dependent.
[Citations.] This accords with the purpose of a dependency proceeding, which is to
protect the child, rather than prosecute the parent.’ [Citations.] The child thus remains a
dependent of the juvenile court.” (In re X.S. (2010) 190 Cal.App.4th 1154, 1161.)
“‘When a dependency petition alleges multiple grounds for its assertion that a minor
comes within the dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’ [Citation.]” (In re I.J.
(2013) 56 Cal.4th 766, 773.)
       In In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.), Division Three of this
court summarized the factors influencing whether a court will exercise its discretion to
reach the merits of a challenge to a jurisdictional finding. According to Drake M., a court
will generally reach the merits when the finding in question “(1) serves as the basis for
dispositional orders that are also challenged on appeal (see, e.g., In re Alexis E. [(2009)
171 Cal.App.4th 438,] 454); (2) could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings (In re D.C. (2011) 195 Cal.App.4th
1010, 1015; see also, In re I.A.[, supra,] 201 Cal.App.4th [at p.] 1494); or (3) ‘could have
other consequences for [the appellant], beyond jurisdiction’ (In re I.A., supra, at p. 1493,
[not reaching the merits of an appeal where an alleged father ‘has not suggested a single
specific legal or practical consequence from this finding, either within or outside the
dependency proceedings’]).” (Drake M., supra, at pp. 762-763.) In Drake M., the court
determined the difference between father being an “offending” parent versus a “non-
offending” parent was enough prejudice to warrant the exercise of discretion. The court
reasoned, “Such a distinction may have far reaching implications with respect to future


                                              8
dependency proceedings in this case and father’s parental rights.” (Id. at p. 763.) In
Drake M., the father did not challenge jurisdictional findings based on mother’s extensive
history of drug abuse, but appealed the jurisdictional findings and dispositional orders
against him based solely on his use of medical marijuana. The child was 14 months old,
well fed, and well cared for, and father was employed. The Department reported that
father appeared capable of providing for the child’s basic needs, and at disposition, the
court had ordered the child to remain placed with father, but also ordered father to attend
drug counseling and undergo drug testing. (Id. at pp. 758, 760-762.)
       In the case before us, father’s situation is very different. Even before attempting
to obtain father’s mental health records, the Department had expressed concern about
father’s ability to care for D.J. He had received SSI for 10 years, but neither he nor any
of his family members could explain why. Paternal aunt needed to assist father in his
daily affairs because of his limitations. Father admitted to two psychiatric
hospitalizations in 2013. First, he was involuntarily hospitalized after police found him
without a shirt and found him to be combative. The second hospitalization occurred after
he got into a fight with his cousin, and his mother insisted he go to the hospital. The
Department’s jurisdiction and disposition report stated it was in the process of obtaining
police reports relating to his 1998 conviction for animal cruelty and mental health records
relating to his 2013 psychiatric hospitalizations. The Department recommended that
father undergo both a section 730 evaluation and a regional center assessment “to rule out
other mental health concerns and or [d]evelopmental concerns.”
       Father insists this court should exercise its discretion to examine the jurisdictional
finding against him so that we may correct the lower court’s purported error in admitting
his mental health records before jurisdiction had been established. He argues that but for
the court’s error permitting disclosure of the documents, he would be a “non-offending”
father entitled to immediate custody of D.J. He also argues that the court’s error is
prejudicial because without the mental health records, the Department lacked sufficient
evidence to establish jurisdiction. Finally, he argues that the disclosure of his mental
health records and the inclusion of those records in the dependency court file, constitutes


                                              9
prejudicial error, not only because it harms his dignity, but because the records may be
used against him in a future dependency proceeding. We find each of father’s arguments
unpersuasive.
       First, we do not read Drake M., supra, 211 Cal.App.4th at page 763, as holding as
a matter of law that the characterization of a parent as “offending” renders any challenge
to a jurisdictional finding justiciable. As discussed earlier, the facts relating to the father
in Drake M. bear no resemblance to father’s mental health issues as demonstrated
independent of the subpoenaed hospital records. Drake M. recognizes that the
determination of justiciability is discretionary, which necessarily means the decision
turns on the facts of each individual case. Moreover, as explained by the court in In re
I.A., supra, 201 Cal.App.4th at page 1494, the only provision in the dependency statutes
distinguishing offending and non-offending parents is section 361, subdivision (c)(1),
which requires the court to permit a non-offending parent to retain custody of a child
when the child is removed from an offending parent. But here, as in In re I.A., father
never resided with the child, and so that provision is not relevant. Father inaptly cites to
section 361.2, under which a court must place a child with a non-custodial parent who
requests placement, absent a finding of detriment, but father never even requested
placement under that section.
       Second, father has not met his burden to show any error by the court in admitting
his mental health records was prejudicial. Father admitted to two psychiatric
hospitalizations in 2013, presumably while mother was pregnant, and the Department had
expressed concerns about his ability to care for D.J., given his apparent mental or
developmental limitations. We see no possibility that, absent admission of the mental
health records, the court would have granted father custody of D.J., or that father will
suffer harm in any future proceedings based solely on the presence of the psychiatric
records in the dependency court file. The reality is that the evidence—even ignoring any
communications father considers privileged contained in the subpoenaed records—raises
grave concerns about father’s ability to care for a young child. Any court considering
future dependency proceedings involving father must take into account all factual


                                              10
circumstances at the time of the hearing. (See In re Rocco M. (1991) 1 Cal.App.4th 814,
824.) A court would be derelict in its duty if it were to ignore the facts present here,
which include an involuntary hospitalization after father was found in the street without
any clothes, and a voluntary hospitalization after father punched his mother in the mouth
and put his hand through a car window. Recognizing some of these facts are included in
the mental health records, we note that they would not be considered privileged
communications protected under Evidence Code section 1010, et seq. “The paramount
purpose underlying dependency proceedings is the protection of the child. [Citations.]
‘The parents do not represent a competing interest in this respect.’ [Citation.]” (In re
Jason L. (1990) 222 Cal.App.3d 1206, 1215.) Any harm father points to is purely
speculative.


                                      DISPOSITION


       We dismiss father’s appeal.




               KRIEGLER, J.


I concur:




               TURNER, P. J.




                                             11
Mosk, J., Dissenting.



       I respectfully dissent from the dismissal of the appeal on the issue of justiciability.
I would reverse the jurisdictional order as to father.


       A.     Justiciability
       The finding that father’s mental and emotional problems placed the child at
substantial risk of suffering serious physical harm or illness (Welf. & Inst. Code, § 300,
subd. (b))1 may well affect efforts by father to recover custody of the child. Because this
case is only at the jurisdictional and disposition stage, significant proceedings are likely
in the future. Father may be prejudiced at one or more of those proceedings by any
jurisdictional finding directed at him. The erroneous admission of father’s mental health
records may have been the difference between the juvenile court finding that father was
an “offending” parent instead of a “non-offending parent.”
       To challenge a jurisdictional finding, father needs only show that it “could
potentially” impact the current or future dependency proceedings. (In re Drake M.
(2012) 211 Cal.App.4th 754, 762; In re D.P. (2014) 225 Cal.App.4th 898, 902 [“we
may . . . exercise our discretion to reach the merits of a challenge to any jurisdictional
finding when the finding may be prejudicial to the appellant, and here, the finding that
mother intentionally hurt her daughter has the potential to impact future dependency
proceedings”], italics added; In re D.C. (2011) 195 Cal.App.4th 1010, 1015 [if the
jurisdictional finding “is erroneous [it] has the potential [of being prejudicial to mother if
she is involved in future child dependency proceedings] and, therefore, [we] shall
consider the merits of her appeal”], italics added.)




1      All statutory references are to the Welfare and Institutions Code, unless otherwise
indicated.

                                              1
       As this court has discretion to consider jurisdictional findings under these
circumstances, I would exercise such discretion to consider the jurisdictional finding as to
father “when, as here, the outcome of the appeal could be ‘the difference between father’s
being an “offending” parent versus a “non-offending” parent,’ a finding that could result
in far-reaching consequences with respect to . .. future dependency proceedings . . . . (In
re Drake M. (2012) 211 Cal.App.4th 754, 762-763 [149 Cal.Rptr.3d 875]; see In re D.P.
(2014) 225 Cal.App.4th 898, 902 [170 Cal.Rptr.3d 656]; In re I.A. [(2011) 201
Cal.App.4th 1484,] 1494.)” (In re Quentin H. (2014) 230 Cal.App.4th 608, 613, italics
added; see also § 361.2.)2


       B.     Disclosure and Admissibility of Mental Health Records
       The Department of Department of Children and Family Services (Department)
issued a subpoena to the custodian of records for Charter Oak Hospital requesting copies
of any and all medical records, including mental health records, pertaining to father. The
Department’s counsel declared that the requested records “are material to the issues
involved in the case by reason of the following facts: THE FORGOING
CONSTITUTES EVIDENCE OF CIRCUMSTANCES ALLEGED IN THE PETITION.
That good cause exists for the production of the [records] by reason of the following
facts: [¶] THE NECESSARY EVIDENCE CAN BE ESTABLISHED IN NO OTHER
WAY.” The subpoena directed the custodian of records to place the responsive records
in a sealed envelope and mail it to the clerk of the juvenile court.
       Father and his counsel were present at the adjudication hearing. The Department’s
counsel stated during the hearing, “The Department just received about an inch and a half
worth of documents this morning, before lunch, regarding [father’s] mental health and
substance abuse issues. [¶] I anticipate the Department will be filing a first amended
petition [regarding him].”



2       It goes without saying that a decision to exercise such discretion does not suggest
that a contrary decision is an abuse of discretion.
                                              2
       Father filed a motion in limine to suppress and exclude admission of his mental
health records based on section 5328 because they were “obtained in the course of
providing services . . . commencing with section 5000 . . . .”, and are protected from
disclosure by the psychotherapist-patient privilege provided by Evidence Code section
1010, et seq. Father also contended in the motion that “[e]ven if the court finds that a
valid waiver [of psychotherapist-patient privilege] occurred, it ‘should exercise its
discretion in excluding such evidence at trial unless its probative value is substantially
outweighed by the harm that may be caused by public disclosure.’” The Department
filed a response to father’s motion in limine and the first amended petition.
       Ultimately, the juvenile court determined that the mental health documents were
subject to disclosure and admissibility. The juvenile court relied on the documents in
finding for jurisdictional purposes that father’s mental and emotional condition
endangered the child’s physical health and safety and placed the child at risk of physical
harm and damage.
       Father’s psychiatric records are privileged. (Evid. Code, § 1014.) Evidence Code
section 1014 provides that a patient “has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between patient and
psychotherapist . . . .” Evidence Code section 1012 states that “‘confidential
communication between patient and psychotherapist’ means information, including
information obtained by an examination of the patient, transmitted between a patient and
his psychotherapist in the course of that relationship and in confidence by a means which,
so far as the patient is aware, discloses the information to no third persons other than
those who are present to further the interest of the patient in the consultation, or those to
whom disclosure is reasonably necessary for the transmission of the information or the
accomplishment of the purpose for which the psychotherapist is consulted, and includes a
diagnosis made and the advice given by the psychotherapist in the course of that
relationship.” As discussed, records that might be discloseable to the court under section
5328, subdivision (f) as necessary to the administration of justice are not subject to
disclosure to the parties if subject to the psychotherapist-patient privilege.

                                              3
              1.     Waiver of Privilege
       The Department contends that father waived the psychotherapist-patient privilege
when, prior to the Department subpoenaing his mental health records, he disclosed to the
Department that he had been receiving SSI (which, as the Department argues, “was most
likely [for] a mental impairment”); had been committed to a psychiatric hospital on two
occasions when law enforcement found him “late at night after working out without his
clothes on;” had participated in a physical altercation with his cousin; and put his hand
through a car window.
       The patient is the holder of the psychotherapist-patient privilege. (Evid. Code, §
1013; Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 602, fn.1.) “Waiver
requires the intentional relinquishment of a known right upon knowledge of the facts.
The burden is on the party claiming a waiver of right to prove it by clear and convincing
evidence that does not leave the matter to speculation. As a general rule, doubtful cases
will be decided against the existence of a waiver. [Citations.]” (Ringler Associates Inc.
v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1188.)
       “[T]he psychotherapist-patient privilege may be waived when the patient
voluntarily discloses otherwise confidential information or tenders her mental state as an
issue. [Citation.]” (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th
1083, 1092.) The Department did not carry its burden to prove father’s waiver of his
psychotherapist-patient privilege by establishing that father disclosed voluntarily his
mental health information to the Department.
       Under Evidence Code section 912, subdivision (a), a waiver of the privilege
requires disclosure of “a significant part” of the confidential communication. Father did
not disclose a significant part of the privileged communication. As the Department
concedes, a patient does not waive his psychotherapist-patient privilege merely by
disclosing that he received psychiatric treatment from a specified psychiatrist following a
particular event. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 341.) “There is, of
course, a vast difference between the disclosure of a general description of the object of

                                             4
her psychotherapeutic treatment, and the disclosure of all or a part of the patient’s actual
communications during psychotherapy.” (Ibid.)
       Father’s statements to the Department regarding his history of mental health issues
were limited. Father admitted to the Department that he had been hospitalized for mental
health reasons twice in 2013. According to father, the first hospitalization occurred
involuntarily when he was found by law enforcement in public without all or some of his
clothes on and was combative, and was discharged from hospital after four days without
any treatment plan or prescribed any psychotropic medication. Father said the second
hospitalization occurred voluntarily after he had a fight with his cousin because father’s
mother believed that he needed to “be assessed.”
       Father did not waive the privilege by not objecting to the copying and distribution
of the records to other counsel. There is no “evidence” in the record that the
Department’s counsel disclosed father’s mental health records to the other counsel.
Statements in the record to the effect that the Department distributed copies of the
subpoenaed records to all counsel were made by counsel for the Department and father,
without a supporting declaration or other evidence.
       In addition, the acquiescence of father’s counsel to the copying and distributing of
the records is not a waiver of the privilege. Father, and not father’s counsel, is the holder
of the privilege. As stated by Evidence Code section §1013, the holder of the
psychotherapist-patient privilege is the “(a) patient when he has no guardian or
conservator. [¶] (b) A guardian or conservator of the patient when the patient has a
guardian or conservator. [¶] (c) The personal representative of the patient if the patient
is dead.” (Evid. Code, §1013, subds. (a)-(c).) Evidence Code section 1013 does not state
that the patient’s attorney is the holder of the privilege. (See In re Lifschutz (1970) 2
Cal.3d 415, 430, fn. 11 [“The statutory privilege established in section 1014 of the
Evidence Code is a privilege of the patient, not of the psychotherapist”].) Similarly, in
the context of a child in a dependency proceeding being the patient, if the child is of
sufficient age and maturity to consent, he or she, as the patient, is the holder of the
psychotherapist-patient privilege, and the child’s counsel may invoke the privilege only

                                              5
when the child has consented to it. (§ 317, sub. (f)). Indeed, even when the child’s
counsel invokes the privilege, the child may waive it. (Ibid.) A privilege may be waived
only by one who is the “holder” of the privilege. (Rittenhouse v. Superior Court (1991)
235 Cal.App.3d 1584, 1588.) In addition, there is no evidence in the record that father
authorized his counsel to disclose the mental health records.
       The court in San Francisco Credit Clearing-House v. MacDonald (1912) 18
Cal.App. 212, citing Lissak v. Crocker (1897) 119 Cal. 442 and Alberti v. New York etc.
Ry. Co. (N.Y. 1889) 23 N.E. 35, stated that the physician-patient privilege under former
Code of Civil Procedure section 1881, subdivision 4, “confers a personal privilege on the
patient, which may be expressly or impliedly waived by him in person or by an attorney
or agent acting on his behalf.” (San Francisco Credit Clearing-House v. MacDonald,
supra, 18 Cal.App. at p. 219.) The court in Lissak v. Crocker, supra, 119 Cal. 442,
however, did not hold that the physician-patient privilege may be waived “by an attorney
or agent acting on [the patient’s] behalf.” And to the extent the court in Alberti v. New
York etc. Ry. Co., supra, 23 N.E. 35 stated that the physician-patient privilege may be
waived by the patient’s attorney, because that case is over 126 years old and concerned
New York law, it should be disregarded. The California Supreme Court, quoting the Law
Revision Commission comment accompanying Evidence Code section 1014, stated that
the “‘psychotherapist-patient privilege . . . provides much broader protection than the
physician-patient privilege.’” (People v. Gonzales (2013) 56 Cal.4th 353, 371; Cal. Law
Revision Com. com., reprinted in Deering’s Ann. Evid. Code (2004 ed.) foll. § 1014, p.
217.) Because San Francisco Credit Clearing-House v. MacDonald, supra, 8 Cal.App.
212 concerned the narrower protection of the physician-patient privilege instead of the
broader protection afforded by the psychotherapist-patient privilege, is over 100 years
old, and does not appear to be in conformity with the present law, I would not follow the
quoted language of that Court of Appeal decision.
       Furthermore, “‘[t]he waiver of an important right must be a voluntary and
knowing act done with sufficient awareness of the relevant circumstances and likely
consequences.’ (Roberts v. Superior Court, supra, 9 Cal.3d at p. 343, italics added.)”

                                             6
(San Diego Trolley, Inc. v. Superior Court, supra, 87 Cal.App.4th at p. 1092.) Although
father was present at adjudication hearing at which the Department’s counsel stated that
the Department just received documents regarding father’s mental health issues, there is
no evidence that father himself, as holder of the privilege, had “sufficient awareness of
the relevant circumstances and likely consequence” of failing to object. (Ibid.) There is
no basis for presuming that father had such sufficient awareness of this because in its
report the Department stated that it appeared father had “cognitive difficulties and or
limitations,” and father said, “My sister helps me because sometimes I don’t understand
everything . . . .” As noted above, the Department has the burden of establishing waiver
by clear and convincing evidence. (Ringler Associates Inc. v. Maryland Casualty Co.,
supra, 80 Cal.App.4th at p. 1188.)
       In addition, the inadvertent disclosure of documents subject to a privilege is not a
waiver of that privilege. (State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644,
654.) As noted above, “[D]oubtful cases will be decided against the existence of a
waiver.” (Ringler Associates Inc. v. Maryland Casualty Co., supra, 80 Cal.App.4th at p.
1188.) In ruling on father’s motion in limine filed after the disclosure of the documents,
the juvenile court did not find that father waived his objection to the disclosure of the
documents. Father did not waive his right to challenge the disclosure of his mental health
records.


               2.     Forfeiture
       The Department also contends that father forfeited his right to complain on appeal
about the disclosure of his mental health records because he and his counsel failed to
object to those records being copied and distributed by the Department’s counsel to the
other counsel. I disagree.
       “Ordinarily, an appellate court will not consider a claim of error if an objection
could have been, but was not, made in the lower court. [Citation.] The reason for this
rule is that ‘[i]t is both unfair and inefficient to permit a claim of error on appeal that, if
timely brought to the attention of the trial court, could have been easily corrected or

                                                7
avoided.’ [Citations.] ‘[T]he forfeiture rule ensures that the opposing party is given an
opportunity to address the objection . . . . [Citation.]” (People v. French (2008) 43
Cal.4th 36, 46.) As our Supreme Court explained, “The [forfeiture] rule is designed to
advance efficiency and deter gamesmanship.” (Keener v. Jeld-Wen, Inc. (2009) 46
Cal.4th 247, 264.) “‘“‘The purpose of the general doctrine of [forfeiture] is to encourage
a defendant to bring errors to the attention of the trial court, so that they may be corrected
or avoided and a fair trial had . . . .’”’ [Citation.]” (People v. Simon (2001) 25 Cal.4th
1082, 1103, citing People v. Saunders (1993) 5 Cal.4th 580, 590.)
         As the Department concedes, the same day the envelope containing father’s
mental health records had been opened and the records distributed, father’s counsel
advised the Department that she “would be filing a motion to prevent [the] disclosure and
use [of father’s medical records] in the proceedings.” Thereafter, father filed a motion in
limine to suppress and exclude admission of his mental health records. Father thereby
brought the alleged error to the attention of the juvenile court so that it may be corrected,
and the juvenile court denied father’s motion without finding that father was dilatory in
making his request. Father did not forfeit on appeal his contention that the disclosure of
his mental health records was improper.


                3.     Disclosure of Father’s Mental Health Records
         Father contends that the juvenile court erred by allowing the disclosure of his
mental health records. Section 5328 provides in part, “All information and records
obtained in the course of providing services . . . commencing with Section 5000[3] . . . to
either voluntary or involuntary recipients of services shall be confidential. . . .
Information and records shall be disclosed only in any of the following
cases: [¶] . . . [¶] (f) To the courts, as necessary to the administration of justice.
    [¶] . . . [¶] (l)(1) Between persons who are trained and qualified to serve on



3        The parties agree that father was provided services commencing with Section
5000.
                                                8
multidisciplinary personnel teams pursuant to subdivision (d) of Section 18951.[4] The
information and records sought to be disclosed shall be relevant to the provision of child
welfare services or the investigation, prevention, identification, management, or
treatment of child abuse or neglect . . . . [¶] . . . (2) As used in this subdivision, ‘child
welfare services’ means those services that are directed at preventing child abuse or
neglect.” (§ 5328, subd. (f) and (l)(1), (2).) “[S]ection 5328 states a limitation on
disclosure, not a ground for admissibility of evidence.” (In re S.W. (1978) 79 Cal.App.3d
719, 722.)


                      a)     Section 5328, subdivision (f)
       The Department contends that the records were subject to disclosure to the
juvenile court under section 5328, subdivision (f)—i.e., the records shall be disclosed to
the courts, as necessary to the administration of justice. The juvenile dependency
proceedings are part of the administration of justice for parents and children. (See In re
M.B. (2011) 201 Cal.App.4th 1057, 1064 [in a dependency case the court noted, “All
courts have inherent powers which enable them to carry out their duties and ensure the
orderly administration of justice”]; In re Amber S. (1993) 15 Cal.App.4th 1260, 1264
[same]; Ariz. Dep’t of Econ. Sec. v. Superior Court (Ariz. App. 1994) 871 P.2d 1172,

4       Section 18951, subdivision (d), provides, “‘Multidisciplinary personnel’ means
any team of three or more persons who are trained in the prevention, identification,
management, or treatment of child abuse or neglect cases and who are qualified to
provide a broad range of services related to child abuse or neglect. The team may include,
but need not be limited to, any of the following: [¶] (1) Psychiatrists, psychologists,
marriage and family therapists, or other trained counseling personnel. [¶] (2) Police
officers or other law enforcement agents. [¶] (3) Medical personnel with sufficient
training to provide health services. [¶] (4) Social workers with experience or training in
child abuse prevention, identification, management, or treatment. [¶] (5) A public or
private school teacher, administrative officer, supervisor of child welfare and attendance,
or certificated pupil personnel employee. [¶] (6) A CalWORKs case manager whose
primary responsibility is to provide cross program case planning and coordination of
CalWORKs and child welfare services for those mutual cases or families that may be
eligible for CalWORKs services and that, with the informed written consent of the
family, receive cross program case planning and coordination.”
                                               9
1173 [accepts jurisdiction in a dependency action “because the issue is important to the
effective administration of justice in the juvenile court”].)
       Father, citing Gilbert v. Superior Court (1987) 193 Cal.App.3d 161, 170, correctly
states that subdivision (f) of section 5328 does not permit the juvenile court to disclose
mental health records to any person or agency merely because it determines that it is
necessary to the administration of justice. “Subdivision (f) of Section 5328 does not
authorize the court to order disclosure of matter which the Evidence Code makes
privileged. [Citation.]” (People v. Gardner (1984) 151 Cal.App.3d 134, 141; Mavroudis
v. Superior Court, supra, 102 Cal.App.3d at p. 602.) That is, mental health records
produced to the juvenile court pursuant to section 5328, subdivision (f) are subject to
disclosure to the parties if the records are not subject to the psychotherapist-patient
privilege under the Evidence Code.
       The parties do not dispute that all of father’s disclosed mental health records
constitute “confidential communication[s] between patient and psychotherapist’ as
defined by Evidence Code section 1012. In disclosing father’s mental health records, the
juvenile court found that after weighing father’s right to privacy against the compelling
interests of the juvenile court in protecting the child, they were necessary to protect D.J.
       Father’s mental health records, subject to the psychotherapist-patient privilege
provided by the Evidence Code, were not admissible evidence at the jurisdictional
hearing. (In re M.L. (2012) 210 Cal.App.4th 1457, 1472, 1476 [“The court erred in . . .
permitting mother’s psychiatric records to be admitted into evidence [at the jurisdiction
hearing] in whole” without first conducting an in camera review to determine on what, if
any, records mother had waived the privilege].) “At the prejurisdictional stage, an
allegation by the Department that a parent is mentally ill or the fact of mental illness
alone does not justify a psychological examination of that parent. . . . Only after a
finding the child is at risk, and assumption of jurisdiction over the child, do a parent’s
liberty and privacy interests yield to the demonstrated need of child protection.” (Laurie
S. v. Superior Court (1994) 26 Cal.App.4th 195, 202-203.) Subdivision (f) of Section
5328 therefore does not authorize the juvenile court to order disclosure of those

                                              10
documents to the Department or any other parties to the dependency proceeding. The
juvenile court erred by allowing the disclosure of his mental health records to the
Department pursuant to section 5328, subdivision (f).
       The Department contends that pursuant to Evidence Code section 1024, father’s
mental health records are not privileged. I do not agree.
       Evidence Code section 1024 provides, “There is no privilege under this article if
the psychotherapist has reasonable cause to believe that the patient is in such mental or
emotional condition as to be dangerous to himself or to the person or property of another
and that disclosure of the communication is necessary to prevent the threatened danger.”
The confidentiality of patient-psychotherapist communications “must yield to the extent
to which disclosure is essential to avert danger to others.” (People v. Lakey (1980) 102
Cal.App.3d 962, 977.) Here, there is no evidence that the “psychotherapist ha[d]
reasonable cause to believe that [father] is in such mental or emotional condition as to be
dangerous to himself” or D.J. at the time of the jurisdictional hearing. There is no such
evidence from any psychotherapist. Moreover, father’s mental health records concerned
his hospitalization for mental health reasons in June 2011, November 2012, and
December 2013. D.J. was not even born when father was hospitalized. Disclosure of
father’s mental health records was not essential to avert danger to father or D.J.


                     b)     Section 5328, subdivision (l)
       The Department contends that the records were subject to disclosure to the
juvenile court under section 5328, subdivision (l)—i.e., records relevant to the
“investigation, prevention, identification, management, or treatment of child abuse or
neglect.” Section 5328, subdivision (l) is inapplicable here because the Department did
not seek disclosure of father’s mental health records for the purpose of “investigation,
prevention, identification, management, or treatment of child abuse or neglect.” Rather,
the Department sought disclosure of the documents to establish jurisdiction. In support
of the subpoena, the Department’s counsel declared that the requested records were
necessary evidence of the circumstances alleged in the petition, and that evidence cannot

                                             11
be established in any other way. “The clear language of the section 5328, subdivision (l)
exception reflects an intent to disclose such documents for the purpose of aiding the
department or other such entities to provide services and treatment to the victim and
offender; it does not exist to provide an evidentiary basis with which to permit the
department to prove its case, particularly not at the jurisdictional phase.” (In re M.L.,
supra, 210 Cal.App.4th at p. 1470.) The juvenile court should not have allowed the
disclosure of his mental health records pursuant to section 5328, subdivision (l).


                 4.    Admissibility of Mental Health Records
       Father contends that the juvenile court erred by admitting into evidence at the
jurisdictional hearing his privileged mental health records. We review evidentiary rulings
for abuse of discretion. (In re Roberto C. (2012) 209 Cal.App.4th 1241, 1249; People v.
Jablonski (2006) 37 Cal.4th 774, 805.) The juvenile court held that the mental records
were admissible at the jurisdictional hearing because they were “relevant to the
proceedings.” As stated above, however, father’s mental health records were not
admissible at the jurisdictional hearing. The juvenile court, therefore, abused its
discretion in admitting those records into evidence over father’s privilege objection.
(David v. Hernandez (2014) 226 Cal.App.4th 578, 590 [error of law constitutes abuse of
discretion.].)


       C.        Prejudice
       The error in admitting father’s mental health records into evidence at the
jurisdictional hearing was not harmless. Based on the evidence before the juvenile court,
father’s mental health records were necessary for the juvenile court to find jurisdiction as
to him.
       If the outcome of a proceeding has not been affected by judicial error, such error is
harmless and does not require reversal. (In re James F. (2009) 42 Cal.4th 901, 916-919.)
The prejudicial nature of the error in disclosing and admitting into evidence mental health
records and testimony is evaluated under the prejudicial error standard applicable to state

                                             12
law error set forth in People v. Watson (1956) 46 Cal.2d 818, 836 [more favorable
outcome for the appellant was reasonably probable absent the error]. (People v.
Gonzales, supra, 56 Cal.4th at p. 357.)
       It is true that without reference to father’s mental health records, there was
evidence that father historically had mental health issues. There is not substantial
evidence, however, that at the time of the jurisdictional hearing, father still suffered from
mental or emotional problems, or that based on those problems D.J. was at substantial
risk of serious physical harm. Before the Department subpoenaed father’s mental health
records, it reported that it needed to conduct further investigation to conclude that father
had mental health or developmental problems. Although father stated that in 2013, he
had been hospitalized for mental health reasons there is no evidence, without the mental
health records, for what mental health issues he was hospitalized, nor is there sufficient
evidence that he suffered from those mental health issues at the time of the jurisdictional
hearing. There also is no evidence that father’s unspecified mental health issues
endangered D.J. at the time of the jurisdictional hearing. Indeed, there is no evidence that
father’s unspecified mental health issues ever endangered D.J.; father stated that he was
hospitalized for mental health reasons in 2013, but D.J. was not born until 2014.
       There also was evidence that father had mental limitations requiring L.H.’s
assistance with some of father’s daily affairs. There was no evidence, however, that
D.J.’s physical safety was endangered at the time of the jurisdictional hearing; L.H.
assisted father with his unspecified “daily affairs.”
       Based on the evidence stated above (i.e., without the introduction into evidence of
father’s mental health records), it is reasonably probable that father would have obtained
a more favorable outcome concerning the jurisdictional finding. The error was not
harmless.
       D.     Substantial Evidence
       Related to the harmless error analysis, father’s contention that there is not
substantial evidence to support the juvenile court’s jurisdictional finding as to him absent
the improperly admitted psychiatric records is meritorious. The juvenile court found that

                                             13
D.J. was a dependent child of the juvenile court pursuant to section 300, subdivision (b)
and sustained count b-3, which alleged that father’s mental and emotional problems
rendered father incapable of providing regular care and supervision of D.J., and
endangered D.J.’s physical health and safety and placed D.J. at risk of physical harm and
damage. Section 300, subdivision (b) provides in pertinent part: “Any child who comes
within any of the following descriptions is within the jurisdiction of the juvenile court
which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b) The
child has suffered, or there is a substantial risk that the child will suffer, serious physical
harm or illness, as a result of . . . the failure or inability of the parent or guardian to
adequately supervise or protect the child . . . .” (Italics added.)
       “A jurisdictional finding under section 300, subdivision (b) requires ‘(1) neglectful
conduct by the parent in one of the specified forms; (2) causation; and (3) “serious
physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’
[Citation.] ‘Subdivision (b) means what it says. Before courts and agencies can exert
jurisdiction under section 300, subdivision (b), there must be evidence indicating that the
child is exposed to a substantial risk of serious physical harm or illness.’ [Citations.]”
(In re John M. (2013) 217 Cal.App.4th 410, 418.) The Department “has the burden of
showing specifically how [the child has] been or will be harmed.” (In re Matthew S.
(1996) 41 Cal.App.4th 1311, 1318.) Based on the evidence, without the introduction into
evidence of father’s mental health records, there is insufficient evidence that D.J. is at
substantial risk of harm as a result of father’s mental condition.
       Accordingly, I would reverse the juvenile court’s jurisdictional order as to father.




                                                    MOSK, J.




                                               14
