In Re SW

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

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