Filed 2/21/18 In re E.S. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


In re E.S., a Person Coming Under the Juvenile Court Law.
HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
A.S.,
Defendant and Appellant.

A151636

(Humboldt County
Super. Ct. No. JV160179)


A.S. (Father) appeals a dispositional order made at the six-month review hearing in this dependency proceeding. He contends that the evidence does not support the juvenile court’s finding that he was offered reasonable reunification services and that the court erroneously based its ruling on his refusal to admit domestic violence. We shall affirm the order.
I. BACKGROUND
A. The Petition and Detention
The Humboldt County Department of Health & Human Services (the Department) filed a petition pursuant to Welfare and Institutions Code section 300 on behalf of E.S., then seven months old, on July 22, 2016. The petition alleged that Minor’s mother (Mother) had unaddressed mental health issues, that Mother and Father did not provide Minor with appropriate supervision and adequate nutrition, and that Mother and Father engaged in domestic violence in Minor’s presence.
In late May 2016, a police officer responded to a report of domestic violence between Father and Mother. Mother said Father had put his hand over her mouth and squeezed, so she had trouble breathing, shoved her to the ground, placed his hand around her neck, and squeezed until she felt she was going to pass out. He told her he would drag her out of the house by her hair. As she gathered her belongings, Father made fun of her voice because it was raspy. She got angry and pushed a chair in his direction. Minor was in another room, and Mother took her, went to her own home, and called the police. Mother had a cut on her upper lip and a six-inch red scratch mark on the back of her neck. Mother reported Father pushed her to the ground during arguments. The day after this incident, Father was arrested for domestic abuse. (Pen. Code, § 273.5.)
Father later told a social worker that he and Mother had gotten into an argument, Father told Mother to leave several times, and Mother said, “I should be ripping your cat’s head off!” Mother then “got in his face” and grabbed his sweatshirt, and Father moved her arms off of him. Father denied having touched Mother’s face, squeezed her mouth, or strangled her during the incident.
Mother later backtracked from her accusations of domestic violence. During a family team meeting on July 1, 2016, Mother reported she was “triggered” by Father’s anxiety and had panic attacks. She said that on the day she accused Father of choking her, she had actually had a panic attack during which it felt like someone’s hands were around her neck.
Mother also reported that on one occasion, she and Father had a fight while they were in a car with Minor. They screamed at each other, and Mother hit herself in the head with a glass bottle, while Minor was in the back seat, crying.
In mid-July 2016, a social worker noticed Minor appeared anemic. Mother was not producing enough breast milk to feed Minor and refused to give her formula. At a medical appointment on July 20, it was found that Minor had not gained any weight in the previous month. Minor was detained from Mother and placed with Father. A contested jurisdiction hearing was set for August 15, 2016, and later continued to August 24, 2016.
Minor was removed from Father on August 20, 2016, after Father tried to enter a bar with Minor in his arms at about midnight. Police officers were summoned, and Father denied having tried to enter the bar. An officer took Minor from Father and placed her in her stroller, then tried to detain Father. Father broke loose and tried to run away. Officers again tried to detain him, and he fought them before being subdued by the use of a taser. Father had red, glassy eyes, slurred speech, and an odor of alcohol. He was arrested for public intoxication, resisting arrest, and child endangerment. A social worker looked in Minor’s diaper bag, which contained no bottle, formula, milk, diapers, or wipes.
The Department amended the petition to allege Minor was at serious risk of physical harm because Father’s substance abuse prevented him from caring for her safely. The juvenile court ordered Minor detained.
B. Jurisdiction
At the September 26, 2016 jurisdiction hearing, Mother testified that, despite her earlier report, she did not believe Father had actually strangled her in May. She testified Father had placed his hand over her mouth when she was yelling at him, because he wanted her to be quiet. Because she suffered from anxiety, she suffered a panic attack, in which she could not breathe. Mother denied that Father had put his hands around her neck and squeezed her. She acknowledged that she and Father had had a “verbal altercation” in a car shortly after their first meeting with the Department, when they were both upset and afraid of losing Minor.
The juvenile court found Minor was a child described in section 300 and took jurisdiction over her.
C. Disposition
The Department’s October 2016 disposition report noted that Minor was in a foster home, and Father and Mother were receiving supervised visits. The Department recommended that Minor remain in out-of-home care and that reunification services be offered. The proposed case plan provided that Father would participate in an alcohol and other drugs (AOD) program and complete a 52-week program at “Mend/Wend,” and that the social worker would meet with each parent at least once a month to discuss their progress.
The parties reached a settlement, under which Father and Mother would complete the Mend/Wend program and Father would undergo another AOD assessment. The juvenile court ordered reunification services pursuant to the case plan.
D. Reunification Services Before Six-Month Review
The Department reported in January 2017 that Father had completed an AOD assessment in November 2016, that he had been advised to participate in the Humboldt County AOD program, and that he had been attending regularly. The juvenile court had ordered Father to take part in a 52-week intervention program, but Father’s counselor at the Mend/Wend program had said he did not recommend the Batterer Intervention Program (BIP) because Father denied being abusive to Mother. The counselor recommended that Father receive individual sessions at Mend/Wend to address communication styles and emotion regulation. Father was receiving individual therapy.
Before an interim review hearing in January 2017, the Department submitted an updated case plan. The plan required the social worker to “contact” each parent at least once a month. At the interim review hearing, the juvenile court ordered Father to follow Mend/Wend’s recommendations.
In May 2017, before the six-month review hearing, the Department reported that Father continued to deny responsibility for the incidents of domestic violence with Mother, and that he relied for this position on the fact that his domestic violence criminal charges had been dismissed. He had attended only five classes in Mend/Wend’s 52-week program. He did not seem willing to make any meaningful behavior changes, and believed Mother’s mental health issues were the cause of the incidents of domestic violence.
Among the services provided, the Department had arranged visitation between Minor and her parents, provided gas cards to the parents, provided referrals to community resources such as Mend/Wend, and consulted with Mend/Wend and other service providers to discuss Mother and Father’s progress. Father had graduated from the AOD group, had volunteered to continue participating in groups, and was in compliance with AOD program rules. He received two supervised visits with Minor each week, and the visits went well.
Father had met and spoken with Department staff multiple times, and he had been “highly combative” toward them. In April 2017, he left two messages for a supervisor, stating in a threatening voice that he would sue the Department for removing his child and saying he had been treated unfairly because the Department had not scheduled a family team meeting for him.
E. Six-Month Review Hearing
A contested six-month review hearing took place in June 2017. Father denied that he engaged in physical domestic violence toward Mother or placed his hands around her neck, but he acknowledged he had argued with Mother in the past.
Father was taking classes at Mend/Wend. He testified that when he originally tried to sign up for classes, he was told there was no referral for him because his criminal case had been dismissed. He had to wait three weeks for a referral, and then he completed four assessments at Mend/Wend. The program offered him one-on-one counseling and accepted him as a voluntary client. He had participated in eight or nine classes, and he had been learning about accountability, avoiding situations and people “that can lead to problems,” and empathy. He had also learned that children can be harmed by being exposed to their parents fighting. Father had completed an AOD program and said he had learned about alcohol and about coping skills. He was continuing to attend the program voluntarily, and he was drug testing voluntarily.
Father described his version of the incident in May 2016 that underlay the domestic violence allegation. Minor was asleep, and Father and Mother started to argue. Mother threatened Father’s cat, and Father got between Mother and the cat, then asked her to leave. Mother was on the ground, then got up and grabbed Father’s sweatshirt. Father pushed her arm off him, and she collapsed to the ground. Mother’s eyes were red, and Father thought she might be “high.” The domestic violence charges arising from this incident had been dismissed, and there was no longer a protective order preventing Father from contacting Mother.
Father said that on the day Mother hit herself in the head with a bottle, Minor was inside the car and Mother was outside of it, out of Minor’s line of vision. Minor did not cry or react to the incident.
Father testified about conflicts he had had with the social worker assigned to the case, Veronique Semple. On one occasion several months previously, he was having “discrepancies” with his gas cards, and Father told Semple she was not doing her job. A supervisor, Trevlene Blood, was in the room, and Semple was asked to leave. Father had met with Blood three times to “try to figure out what is going on in my case.” He had also asked a supervisor in the Department, Tim Nugent, why he had not spoken with his social worker for two months. Nugent was the only social worker who had ever called Father back. Father testified he had had only one or two official meetings with Semple, and he had not seen her for three or four months. None of their meetings were “meaningful”; they involved Father asking why Semple would not communicate with him and why she had taken Minor from him. Father had been told a few weeks earlier that Semple was no longer his social worker.
Semple testified that when she met with her supervisor and Father, apparently during October 2016, the meeting did not go well, and Father complained about her. At a meeting in November, Blood told Semple she should not come into the room because Father was angry with her. After that, Father contacted Blood and Nugent rather than Semple. Father often yelled at Semple during phone calls. On one occasion, when Blood wanted Semple to meet with Father, Semple refused because she was afraid for her safety. Semple called Father in March, and he screamed and yelled at her. He yelled at Semple when she was speaking with Minor’s grandfather in the courthouse lobby. Semple told Father she would not meet with him face-to-face until he made progress with Mend/Wend. It was the Department’s practice not to have face-to-face contact with a parent when there was a safety concern.
After the November meeting, Semple sent Father messages telling him to comply with the Mend/Wend program. The Department had been paying for Father to participate in the Mend/Wend program since November 2016, but Father did not sign up for the 52-week program until the end of March. Semple testified that Father was a good parent when he was with Minor, and that the issue that concerned her was domestic violence between Mother and Father.
Another social worker, Rebecca Shuflin, was assigned to the case in May 2017. She testified that Father became angry, aggressive, and agitated in meetings, and it was difficult to focus on the subject matter of the meeting rather than on trying to calm him down. Mother had confirmed to Shuflin that in the May 2016 incident, Father put his hands around her neck.
Shuflin testified that Father was participating well in Mend/Wend’s BIP meetings. Progress reports indicated Father’s “ ‘level of accountability is acceptable, and he is committed to getting as much out of the program and increasing his accountability and skill level where needed.’ ”
Elizabeth Kemper, a therapist at Mend/Wend, was a facilitator for Father’s Mend/Wend group. Father participated actively, he was open to feedback, and no one in the group was afraid of him. He had made progress in the areas of accountability, empathy, healthy boundaries, and safe conflict resolution. Someone deemed to be in denial would not be able to participate in the program.
Mother testified that during the May 2016 incident, she and Minor were at Father’s home. Minor was sleeping. Father and Mother argued, and Mother screamed at Father. Father put his hand over Mother’s mouth to silence her screams. Mother had a panic attack and fell to the floor, sobbing and hyperventilating. Father did not put his hands around her throat. Father’s behavior had changed since then, and he was calm and civil toward her. Mother testified that on one occasion in the past, Father had placed his hands on her arms, “not exactly forcefully, but it was definitely invading my space.” He had engaged in verbal domestic violence, by raising his voice to her and insulting her. She considered herself a victim of domestic violence, “[m]ostly verbal and emotional.”
The juvenile court continued Minor in out-of-home care and ordered continued family reunification services for Mother and Father. Among its findings, the court found that Father had made minimal progress in addressing the issue of domestic violence and that the parents had been offered reasonable services to aid them in overcoming the problems leading to intervention. In apparent recognition of Father’s anger management problems, the juvenile court also offered to refer him for a psychiatric evaluation, but he objected to that offer.
II. DISCUSSION
A. Reasonable Services Finding
Father contends the evidence does not support the juvenile court’s finding that he was provided with reasonable reunification services. He bases this argument on the fact that Semple, the assigned social worker, did not meet with him face-to-face after their October 2016 meeting.
“Family reunification services play a critical role in dependency proceedings. [Citations.] Reunification services should be tailored to the particular needs of the family. [Citation.] . . . [¶] The ‘adequacy of reunification plans and the reasonableness of the [Agency’s] efforts are judged according to the circumstances of each case.’ [Citation.] To support a finding reasonable services were offered or provided, ‘the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .’ [Citation.]” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1425-1426.) We bear in mind that “[i]n almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) We review such a finding for sufficiency of the evidence. (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1346.) “ ‘ “ If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.’ ” [Citations.]” (Ibid.)
Substantial evidence supports the juvenile court’s finding that Father was offered reasonable services. Two of the problems giving rise to the dependency and Minor’s removal were incidents of domestic violence between the parents and Father’s action in trying to enter a bar with Minor late at night, then trying to run away from police and fighting them in Minor’s presence. Father received an AOD assessment, was advised to participate in an AOD program, and attended the program regularly and graduated from it. The Department referred him to the Mend/Wend and paid for his participation, and Semple encouraged him to attend. After some delay, Father had recently begun attending Mend/Wend’s BIP program. He also received individual counseling and regular visitation with Minor. Based on this record, the juvenile court could reasonably conclude Father was offered services designed to address the problems that led to Minor’s removal.
We are not persuaded otherwise by the evidence that Semple did not have face-to-face contact with Father during much of the time in question, and the Department did not assign a new social worker to the case until May 2017. Father’s own anger and aggressiveness—which caused Semple to fear for her safety—were the impediment to in-person meetings. (See In re T.G. (2010) 188 Cal.App.4th 687, 698 [“While it is true the social worker is charged with maintaining reasonable contact with the parents during the course of the reunification plan, he or she cannot do so without some degree of cooperation from the parent”].) Nevertheless, Semple communicated with Father through messages, and she called him in March 2017. Father was also able to speak with two supervisors, Blood and Nugent. And, most important, he continued to be offered services designed to address issues of substance abuse, conflict resolution, and domestic violence. Father argues that, if he had been meeting regularly with his assigned social worker, adjustments might have been made to his case plan, including referral to a program other than Mend/Wend or assessing whether Father needed psychotropic medication. Whether or not such additional services would have been useful, the record supports the juvenile court’s conclusion that the services offered were reasonable.
B. Domestic Violence
Father also contends the juvenile court erred by requiring him to admit he perpetrated domestic violence against Mother. At the six-month review hearing, the juvenile court must return the child to the parents’ custody unless it finds, by a preponderance of the evidence, that return would create a substantial risk of detriment to the child. (§ 366.21, subd. (e)(1).)
In making its ruling, the juvenile court discussed the domestic violence in Mother and Father’s relationship. The court stated, ‘He choked [Mother]. That’s, without question, a finding made by the Court. Complete denial by [Father] . . . The Court, hearing the case, substantiating the [p]etition, found it be to true. [¶] Each time he’s asked, it’s a denial. To this day, this very day, [Father] would deny culpability, responsibility. . . . And it’s [Father] as a denying perpetrator, [Mother] as a denying victim of abuse brings us to today.” The court went on, “How can [Minor] be safe in the care of her parents until [Father] acknowledges, steps to the plate, and assumes responsibility for his actions, his behavior? That’s—I can’t do anything to assist him, except provide further family reunification services.” The court later addressed Father, saying, “[Y]ou need to make your choices. I’m not trying to paint you as a—in a negative light. Accept the facts. Speak to what they are. Do you accept them? There we go.”
Father makes a two-pronged attack on the juvenile court’s ruling. First, he argues his refusal to admit to domestic violence does not show Minor would suffer detriment if returned to him. He relies primarily on Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.). There, an original petition, alleging the children in question were victims of excessive corporal punishment, was sustained. (Id. at p. 1742.) A subsequent petition was thereafter filed, alleging the father had sexually molested one of the children. (Ibid.) The judge who presided over the hearing on the subsequent petition spent much of the hearing under the misapprehension that the father’s responsibility for the sexual molestation had already been adjudicated, and the judge acknowledged he had not looked at the petition. (Id. at p. 1744.) A psychological evaluation later exonerated Father of any propensity to sexually abuse children. (Id. at p. 1745.) Another judge presided over the 18-month review hearing, at which the social services agency presented evidence that the parents “had not made sufficient ‘progress’ in therapy and had not ‘internalized’ proper parenting skills, based mostly [on] the couple’s refusal to admit, in therapy, that [the father] had molested [the child].” (Id. at p. 1747.) The juvenile court found it would be detrimental to return the children to the parents and set the matter for a hearing pursuant to section 366.26. (Ibid.)
The appellate court ordered the trial court to hold a new hearing on the molestation allegations. (Blanca P., supra, 45 Cal.App.4th at pp. 1759-1760.) It first discussed the “confession dilemma”—that is, the dilemma faced by a parent innocent of child molestation, who might face a choice of either falsely admitting molestation or losing custody of a child based on the parent’s denial of the false allegation. (Id. at pp. 1752-1753.) This dilemma, the court concluded, “places an extraordinary premium on the correct adjudication of a petition alleging sexual abuse. If an injustice occurs there, the hard fact of life is that the very innocence of the parent will in all likelihood render the family asunder. . . . [The hearing] is not the sort of thing to be rushed, or taken routinely.” (Id. at pp. 1753-1754, fn. omitted.) The court concluded that “collateral estoppel effect should not be given, at a 12- or 18-month review, to a prior finding of child molestation made at a jurisdictional hearing when the accused parents continue to deny that any molestation ever occurred and there is new evidence supporting their denial.” (Id. at p. 1757.) In the circumstances before it—where the jurisdictional hearing was conducted by a judge “under a serious misimpression about what was at stake” and there was evidence exonerating the parent of the accusation—the appellate court directed the trial court to hold another hearing on the subsequent petition’s molestation allegations. (Id. at pp. 1741, 1759-1760.)
This case is readily distinguishable from Blanca P. Even assuming the rule of Blanca P. applies outside the context of child molestation, there is no suggestion the juvenile court did not understand the issues or the evidence before it at the jurisdictional hearing when it sustained the domestic violence allegation. Nor is there any independent evidence exonerating Father of domestic violence. Although Mother recanted her earlier statement that Father choked her, Father has not shown the court was obliged to accept her shifting version of events. Indeed, Mother’s injuries after the May 2016 incident and her recent statement to Shuflin that Father had put his hands around her neck support the court’s finding that domestic violence occurred. (See In re Madison S. (2017) 15 Cal.App.5th 308, 317-321 [substantial evidence supported trial court’s finding that child’s physical injuries were the result of abuse by father].) Furthermore, the record contains other evidence of domestic violence between Father and Mother, both physical—for example, the evidence of Father pushing her—and verbal. Father had only recently begun engaging in the domestic violence group, and it appeared he still showed a volatile temper. In these circumstances, the juvenile court could reasonably conclude that Father needed more reunification services to assist him in addressing the problems leading to the dependency and that it would be detrimental to return Minor to Father’s custody at that time.
Father’s second challenge to the finding of detriment is that the Department and the juvenile court improperly placed pressure on him to admit to domestic violence without advising him of his Fifth Amendment right against self-incrimination or offering him immunity. This argument is unpersuasive. Under section 355.1, subdivision (f), “[t]estimony by a parent, guardian, or other person who has the care or custody of the minor made the subject of a proceeding under Section 300 shall not be admissible as evidence in any other action or proceeding.” Thus, although this statutory immunity is not precisely co-extensive with the Fifth Amendment privilege against self-incrimination, “California law offers a promise to a parent that his or her testimony in juvenile dependency proceedings, as well as his or her statements made in therapy in furtherance of the reunification process, will not be used against the parent in a subsequent criminal prosecution.” (In re Mark A. (2007) 156 Cal.App.4th 1124, 1142; see also In re D.C. (2015) 243 Cal.App.4th 41, 57 [“It is well settled . . . that [a parent] automatically receives use immunity for statements made in court-ordered therapy”].) To the extent the Department and the court required Father to accept responsibility for his actions in order to make progress in his reunification services, Father’s Fifth Amendment rights were not implicated. Contrary to Father’s argument, “the law may legitimately require a parent to admit responsibility for wrongful acts as a condition to be fulfilled in therapy.”
(In re Mark A., supra, 156 Cal.App.4th at p. 1142; accord In re Candida S. (1992) 7 Cal.App.4th 1240, 1249-1250; In re Jessica B. (1989) 207 Cal.App.3d 504, 517-518.)
Father points out that rule 5.548 of the California Rules of Court provides procedures for the court to advise a witness of the privilege against self-incrimination, appoint counsel for such a witness, and grant use and derivative use immunity if a witness refuses to answer a question based on the privilege against self-incrimination. (See also Cal. Rules of Court, rule 5.534(g)(1)(A).) Here, Father was represented by counsel and he did not object to or refuse to answer any questions on Fifth Amendment grounds. Rule 5.548 does not undermine the juvenile court’s finding of detriment.
III. DISPOSITION
The order appealed from is affirmed.


 



_________________________
Schulman, J.*


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.