Opinion
H047781 H047793 H048549
08-04-2021
In re J.S., et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. D.G., Defendant and Appellant. In re V.G., et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. S.L., et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Santa Clara County Sup. Ct. Nos. 19JD26013, 19JD26014, 19JD026015, 19JD026144
GREENWOOD, P.J.
D.G. (Mother) and S.L. (Father) have two children together who are dependents of the juvenile court. (Welf. & Inst. Code, § 300.) They are V.G., born in 2017, and M.B., born in 2019. Mother has two other children, J.S., born in 2007 and J.M., born in 2013. J.M. is a dependent of the juvenile court. A section 300 petition was sustained as to J.S. and subsequently dismissed by the juvenile court.
All further statutory references are to the Welfare and Institutions Code.
Mother and Father appeal the January 2020 juvenile court's jurisdiction and disposition order, arguing that the juvenile court erred when it refused to allow them to call Mother's six-year-old child J.M. to testify at the hearing. Mother and Father wished to challenge J.M.'s accounts of Father's physical abuse.
We find the juvenile court did not abuse its discretion when it granted the motion to quash the subpoena compelling J.M.'s attendance as a witness at the jurisdiction hearing given evidence that J.M. would suffer psychological trauma if forced to testify. For the reasons set forth below, we affirm the jurisdiction and disposition order.
Mother and Father also appeal the October 2020 six-month review order maintaining the children's placement outside the parents' home and continuing reunification services. Mother and Father argue there is not substantial evidence to support the conclusion that the children would be at substantial risk of harm if they were to be returned to the parents' care.
Given the parents' ongoing denial of Father's physical abuse of J.M., and their minimization of the domestic violence in their relationship, we find there is substantial evidence to support the juvenile court's finding that the children would be at substantial risk of harm if returned to the parents' care. For the reasons set forth below, we affirm the six-month review order.
In S.L. v. Superior Court (H048869), Father also seeks an extraordinary writ setting aside the juvenile court's order terminating his reunification services with V.G. and M.B., asserting errors that are partially dependent on our determination of the appeals here. We thus granted a stay of the section 366.26 hearing to carefully consider the issues on appeal before deciding those presented in the writ proceeding.
I. Factual and Procedural Background
We have carefully considered the complete record in these cases and include only those facts relevant to the issues presented in the appeals.
1. Section 300 Petitions
Due to ongoing domestic violence between Mother and Father in the presence of the children, and allegations that Father was physically abusing J.M., the Santa Clara County Department of Family and Children's Services (“Department”) filed three separate petitions on September 9, 2019 as to J.S., J.M., and V.G. All of the petitions alleged that the children came within the jurisdiction of the juvenile court pursuant to Section 300, subdivisions (b)(1), (c) and (j), because they were at substantial risk of physical and emotional harm due to domestic violence between Mother and Father, and Father's repeated physical abuse of J.M. The petition as to J.S. also alleged that her father's whereabouts were unknown. (§ 300, subd. (g).)
At the first hearing on September 10, 2019, the juvenile court ordered the children detained and set a jurisdiction hearing for October 1, 2019.
J.S.'s father appeared in court on October 1, 2019, and the matter was continued to October 16, 2019.
On October 16, 2019, at the request of Mother and Father, the juvenile court set a contested jurisdiction and disposition hearing for December 9, 10, and 12, 2019.
Mother gave birth to M.B. in October 2019. The Department filed a petition on November 26, 2019 as to M.B., pursuant to section 300 subdivisions (b)(1), (c) and (j). The allegations in the petition were the same as those contained in the petitions for the other three children that were filed in September 2019.
The children were placed in different homes pending the jurisdiction and disposition hearing. J.S. was placed with her father. J.M. was placed with his paternal grandparents. V.G. and M.B. were placed with their paternal grandparents.
2. Department's Recommendations for Jurisdiction and Disposition
The Department recommended that the juvenile court sustain the four petitions for the children. As to J.S., the Department recommended that the court sustain the amended petition, dismiss the case with physical and legal custody to J.S.'s father, and order that Mother have supervised visitation. The Department recommended that the court sustain the petition with respect to J.M. and order reunification services for Mother; J.M.'s father is deceased. The Department recommended that the court sustain the petition regarding V.G. and M.B. and order reunification services for Mother and Father.
3. Physical Abuse of J.M.
There are reports going back to 2015 that then-two-year-old J.M. had been physically abused by his paternal grandparents, Mother and Father at different times. On August 30, 2015, J.M.'s grandparents said they saw Mother “smack” J.M. on the back of the head. On June 18, 2016, J.M. had a scratch on his right forearm that his grandfather caused when he aggressively put J.M. on a timeout. On February 15, 2017, J.M.'s grandparents reported to Tracy city police that J.M. was being abused by Mother, who caused bruising under J.M.'s eye. On March 18, 2017, J.M.'s grandfather reported to Tracy city police that J.M. had several bruises on his face, leg, and buttocks when he came for a visit. J.M. told his grandfather that Mother caused the bruises because she was mad. On May 20, 2018, J.M., then five years old, told a Stockton city police officer that Father hit him on his legs the previous night. J.M. said Father hits him when he is mad at Mother but stops when she tells him to.
At age six, J.M. told his paternal grandparents in May 2019 that Father hit him in his private parts because he was in Mother's bed. At the time, J.M. had bruises on his elbow and on his back. J.M. told his grandparents that Father caused the bruises.
On May 7, 2019, a Sheriff's Deputy from San Joaquin County interviewed J.M. about the bruises on his elbow and back. J.M. said that he did not have a bed to sleep on and that Father hits him when he tries to get into Mother's bed.
In August 2019, J.M. told social worker Stephanie Greer that he felt safe with his mother. J.M. said that Father hit him and hurt his legs when he was three years old.
In September 2019, J.M. met with social worker Daniel Hsu and said that Father had been hitting him since he was two years old and that Father hit him on his legs, back and private parts. J.M. said that when he told Mother about the hitting, Mother would say that Father did not hit him. J.M.'s grandparents gave Mr. Hsu pictures dating back to 2016 of bruises on J.M.'s body that he sustained while he was in Mother's care.
J.M. also talked to social worker Brian Hawkinson in September 2019. J.M. told Mr. Hawkinson that Father hit his legs and back many times and that it hurt. J.M. said he did not feel safe with Father.
Mother spoke with Mr. Hawkinson in September 2019 and told him she did not know how J.M. got bruises and that boys play and get bruises. Mother denied that Father hit J.M. and claimed that J.M. was being coached by his grandparents to say that he was being abused by Father. Mother said that she had been involved in a guardianship case with J.M.'s paternal grandparents, who were trying to obtain custody of him.
Father also met with Mr. Hawkinson in September 2019. Father said that the allegations that he had physically abused J.M. were an “outright complete and total fabrication.” Father told Mr. Hawkinson that he would never put his hands on J.M.
On September 24, 2019, J.M. was evaluated by Dr. Marlene Sturm for child abuse at the Center for Child Protection. Dr. Sturm saw bruises of different ages around J.M.'s knees, which she believed were common for active children and not indicative of child abuse. Dr. Sturm reviewed photographs that were taken by J.M.'s grandparents of bruises on his torso, back and buttocks. Dr. Sturm opined that the location of those bruises “raise concern for abuse.”
4. Subpoena of J.M. and Motion to Quash
Father had a subpoena served on J.M. on November 25, 2019 to compel him to testify at the contested jurisdiction and disposition hearing set in December. Prior to the hearing, J.M.'s minor's counsel filed a motion to quash the subpoena, arguing that requiring the child to testify would cause him psychological and emotional harm. The motion to quash included a declaration from Mr. Hawkinson, that in his opinion, it would be psychologically harmful for J.M. to testify in open court.
On the first day of the contested hearing, the juvenile court addressed the motion to quash. Father argued that J.M.'s testimony was relevant to whether Father had physically abused him, and the necessity of the 52-week child abuser's class as part of Father's reunification plan. Father believed that if J.M. were to testify, he would contradict his prior statements that Father had physically abused him. J.M.'s minor's counsel argued that it would be harmful to require J.M. to testify and that Father could call J.M.'s paternal grandparents to cross-examine them about coaching J.M. to say that Father had abused him.
The juvenile court questioned Mr. Hawkinson, who was present in court, about the possibility of J.M. testifying. The juvenile court asked if there was any indication that J.M. had been coached by his paternal grandparents to falsely say that Father had physically abused him. Mr. Hawkinson said that he did not believe J.M. had been coached and that the child's accounts of the abuse over the past two years to himself and other social workers had been consistent. Mr. Hawkinson believed J.M. had been truthful, and that it would be harmful to him to have to testify and relive the abuse.
The juvenile court stated in order to overcome the motion to quash and compel J.M. to testify, the parents needed “to make an especially strong showing regarding the probative value of his testimony and the pressing need for him to testify[.]” The juvenile court found the parents had not met their burden and granted the motion.
5. Contested Jurisdiction and Disposition Hearing
The contested jurisdiction and disposition hearing was held on December 9, 10, and 12, 2019. Social workers Mr. Hsu and Mr. Hawkinson testified, as did Father. Mother did not testify at the hearing.
Mr. Hsu testified that he met with J.M. to talk about the allegations of Father's physical abuse. J.M. told Mr. Hsu that Father hit him, and he did not feel safe at home because of Mother and Father's domestic violence and because Father hit him. Neither parent objected to the admission of the Department's reports or to the admission of J.M.'s out-of-court statements.
Mr. Hawkinson testified he did not believe that Mother herself posed a risk of physical harm to any of the children. He was concerned that the children would be physically abused by Father while in her care, and that she would not protect them. Mr. Hawkinson was also concerned that the children could be harmed due to the domestic violence between Mother and Father. Mr. Hawkinson spoke to J.M.'s paternal grandparents and did not believe that they were trying to coach J.M. to say that Father was physically abusing him.
Father testified that he had never physically abused or spanked J.M. Father would not participate in the child abuser's class because he had never abused a child. Father believed that J.M.'s paternal grandparents were coaching the child to say that Father had abused him. Father also testified that he and Mother did not engage in domestic violence in front of the children and when the two disagreed, Father would not yell.
At the conclusion of the hearing, the juvenile court found that J.M.'s accounts of Father's physical abuse to the social workers were credible and that Father's testimony was not credible. The juvenile court noted that the parents denied they had been violent with each other in front of the children and the parents' position was that Mother was the sole aggressor toward Father. The juvenile court did not believe Mother had the ability to protect the children.
The juvenile court sustained the petitions as to all four children and found their current placements were appropriate. The juvenile court ordered that the parents receive reunification services including visitation with the children.
6. Notices of Appeal of Jurisdiction and Disposition Orders
In January 2020, Father and Mother filed timely notices of appeal of the jurisdiction and disposition orders.
On March 5, 2021, the Department filed a letter with this court indicating that it would not be filing a respondent's brief, and takes no position on whether the juvenile court erred in granting the motion to quash the subpoena of J.M.
On April 13, 2021, minor's counsel for J.M., V.G. and M.B. filed a respondents' brief. The following day, minor's counsel for J.S. filed a respondent's brief.
Father filed a motion to strike J.S.'s respondent's brief on May 7, 2021 in H047793. We deny the motion.
7. Reunification Services Following Jurisdiction and Disposition
The reunification services for the parents included a parenting without violence class, a conflict and accountability class, individual therapy, and a domestic violence assessment. The juvenile court also ordered Father to complete a 52-week child abuser's class as well as a psychological evaluation. The six-month review hearing was set for early July 2020.
Father and Mother continued to live together throughout the reunification period. Father completed the psychological evaluation. In the evaluation, Father blamed Mother for the physical violence between them, and said that he was angry about the dependency case because it was based on false allegations. The evaluator found that Father had little to no insight into the domestic violence in his relationship with Mother.
Father completed six sessions of the parenting without violence class before it was interrupted in mid-March 2020 due to the COVID-19 pandemic. In mid-May 2020, the class restarted online. Father missed some sessions but was able to make them up and finish the class.
In addition to the parenting class, Father completed 12 sessions of individual therapy. In his sessions, Father was working on ways to prevent future domestic violence. Father was also attending the conflict and accountability class.
Father was enrolled in the 52-week child abuser's class in February 2020. He completed nine sessions and stopped attending in mid-May 2020. Father told the program's facilitator that he was no longer required to attend the program, which was a misrepresentation of the court order.
Mother started attending the parenting without violence class in February 2020. The class was postponed due to the COVID-19 pandemic in March 2020 and started again online in mid-May 2020. Mother was dropped from the class in mid-July 2020 for missing too many sessions; however, she continued to attend the sessions after she was dropped.
Mother participated in individual therapy from February 2020 until late June 2020, when the agency where she received it closed. Mother was referred to another agency to continue therapy but did not follow through to schedule an appointment.
Mother successfully completed more than 16 sessions of a 52-week batterer's intervention program to meet the requirement of her reunification plan that she complete the conflict and accountability program. In June 2020, Mother and Father completed the domestic violence assessment. Mother scored in the “problem risk range” and Father scored in “severe problem risk range, ” indicating that he could be violent when involved in a disagreement. During the assessment, Mother admitted that she was physically violent toward Father, including punching him with a closed fist, pushing him and slapping him. Mother also said that Father would shove her and grab her wrists causing bruises. Father denied that he had ever been the aggressor during altercations with Mother and said that he would only use force against her in self-defense.
The social worker met with J.M. in July 2020. J.M. said that he liked visiting with Mother, but that he was afraid of Father because he used to hit him. J.M. was having night terrors.
At the initial six-month review hearing in July 2020, the juvenile court dismissed J.S.'s dependency case and granted physical and legal custody to her father. Mother was ordered to have twice monthly unsupervised visits. Later that week, Mother picked up J.S. from the father's house for a visit and did not return J.S. to her father's care.
Mother told the social worker that J.S. was afraid of her father and refused to return home. Mother also said that she was planning to file a request with the family court to change the custody orders. Mother never completed the paperwork, and J.S. remained in her care in violation of the court order. Father told the social worker that he did not believe he should be held responsible for Mother's violation of the custody order and that he was supportive of her decision.
8. Contested Six-Month Review Hearing
At the request of the parents, the juvenile court set a contested six-month review hearing. The hearing was held on September 30, 2020 and October 1, 2020, during which social worker Julie Walker and Father testified. Mother did not testify at the hearing.
Ms. Walker testified that both parents continued to deny that Father had physically abused J.M. Based on this denial, Ms. Walker was concerned for J.M.'s safety, and did not believe Mother could adequately protect V.G. and M.B. if the children were returned to the parents' care.
Ms. Walker was also concerned for the children's safety because of Mother's violation of the custody order for J.S., and Father's support of Mother's actions. She believed if the parents were willing to violate the custody order, they would be more likely to ignore any future orders for J.M., V.G. and M.B.
Ms. Walker was troubled that Mother continued to take sole responsibility for the domestic violence in her relationship with Father. Father minimized the domestic violence and maintained that he resorted to physical force with Mother in self-defense.
Father testified at the hearing that he had learned through participating in his case plan that domestic violence is harmful to children. He continued to deny that he had ever physically abused J.M. Father also testified that he encouraged J.S. to go back to her father's house because he was afraid that if she stayed with him and Mother, it would affect his ability to get his children back.
9. Juvenile Court's Six-Month Review Order
At the end of the contested six-month review hearing, the juvenile court ordered that the children remain detained and the parents continue to receive reunification services. The juvenile court found that the parents were participating in their case plan and had acknowledged that domestic violence was harmful to their children; however, the juvenile court was concerned that Mother alone was taking responsibility for the violence in the parents' relationship. The court was also troubled by the parents' continued denial that Father had physically abused J.M.
The juvenile court found that Father was not credible and did not take responsibility for his actions. Further, Mother demonstrated a lack of respect for the court by disobeying the family court custody order and keeping J.S. from her father.
The juvenile court concluded that the parents' behavior created a substantial risk of harm to the children if they were to be returned to the parents' care. The juvenile court ordered continued reunification services for the parents and set the 12-month review hearing for V.G. and J.M. on November 5, 2020 and for M.B. on January 12, 2021.
The Department filed a motion to augment the record on appeal with the juvenile court's subsequent 12-month review order on April 9, 2021 in H048549. As that report was not considered by the juvenile court at the six-month review, we deny the motion.
10. Notices of Appeal of the Six-Month Review Order
Mother and Father filed timely notices of appeal of the six-month review order.
II. Discussion
A. Appeals of Jurisdiction and Disposition Orders: H047781 and H047793
Father and Mother appeal the juvenile court's jurisdiction and disposition orders. Father argues the juvenile court abused its discretion when it granted the motion of minor's counsel to quash the subpoena compelling J.M. to testify at the jurisdiction hearing. He asserts that by not requiring J.M. to testify, the juvenile court violated Father's due process rights. Father seeks to have the finding that he abused J.M. stricken and the requirement that he complete the 52-week child abuser's class removed from his reunification plan. Mother joins in Father's arguments and asserts the finding that she failed to protect J.M. from Father's abuse should be stricken.
1. Standard of Review
Fundamental rights are implicated in the concept of parenting, and due process requires that parents in a dependency proceeding be given the right to call witnesses and cross-examine them. (In re Amy M. (1991) 232 Cal.App.3d 849, 864 (Amy M.)) However, “[u]nlike a criminal defendant, a parent in a dependency proceedings does not have a right ‘to full confrontation and cross examination' under the Sixth Amendment of the federal Constitution or article I, section 15 of the California Constitution. [Citations.] A parent does, however, have ‘a due process right to a meaningful hearing with the opportunity to present evidence,' including a right to confrontation and cross-examination of witnesses. [Citations.].” (In re Daniela G. (2018) 23 Cal.App.5th 1083, 1092 (Daniela G.).) Section 341 provides: “Upon request of the social worker, district attorney, the child, or the child's parent, guardian, or custodian, or on the court's own motion, the court or the clerk of the court, or an attorney, pursuant to Section 1985 of the Code of Civil Procedure, shall issue subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing regarding a child who is alleged or determined by the court to be a person described by Section 300.” California Rules of Court, rule 5.534 (k)(1)(C) confirms appellant's “right to use the process of the court to bring in witnesses.” Section 350, subdivision (b) provides that a child's testimony may be taken in chambers outside the presence of the parents under certain circumstances.
Nevertheless, “[i]t would be a perversion of the procedure to impose... a requirement that the child's testimony always be presented, regardless of the trauma resulting to the child therefrom, and regardless of the necessity of such testimony in the resolution of the issues before the court.” (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1089 (Jennifer J.).) Where “it is shown that the child would be psychologically damaged by being required to testify” and “the child's desires and wishes can be directly presented without live testimony” so that “the issues to be resolved would not be materially affected by” his testimony or absence thereof, the juvenile court has the discretion to decline to order the child to testify. (Ibid.) “This power derives... from... the overriding objective of the dependency hearing-to preserve and promote the best interests of the child.” (Ibid.; accord, e.g., Daniela G., supra, 23 Cal.App.5th at pp. 1095-1096.)
We review the juvenile court's order granting the motion to quash J.M.'s subpoena for an abuse of discretion. (Daniela G., supra, 23 Cal.App.5th at p. 1090.) A court abuses its discretion if its actions are “arbitrary or capricious or exceed[] the bounds of reason, all of the circumstances being considered.” (People v. Welch (1993) 5 Cal.4th 228, 234.) We review any challenge to the factual findings underlying the juvenile court's ruling for substantial evidence and review any claims that raise a question of law de novo. (In re D.M. (2015) 242 Cal.App.4th 634, 640.)
2. Potential Harm to J.M. From Testifying
In granting J.M.'s motion to quash, the juvenile court found that while J.M.'s testimony could have some relevance to the proceedings, he should not be required to testify because Father failed to make “an especially strong showing regarding the probative value of his testimony and the pressing need for him to testify directly in court.”
Father argues the juvenile court utilized the incorrect legal standard when it granted the minor's motion to quash the subpoena. Specifically, he asserts that the juvenile court should have weighed the necessity of J.M.'s testimony against the potential harm it could cause the child, rather that requiring Father to make “an especially strong showing” of the relevance of the testimony. (Jennifer J., supra, 8 Cal.App.4th at pp. 1085-1086.) Further, Father notes that he was not requesting that J.M. testify “directly in court”; rather, he offered to have J.M. testify in chambers out of the presence of Mother and Father to reduce J.M.'s stress, as prescribed by section 350, subdivision (b). Father argues the juvenile court's grant of the motion to quash the subpoena deprived him of due process.
Father relies on Amy M., in which a daughter and son were found to be dependents of the juvenile court based on the father's molestation of the daughter. The daughter testified at the jurisdiction hearing, but the juvenile court precluded the testimony of the son based on a neutral evaluator's opinion that “it would be stressful” for him. (Amy M., supra, 232 Cal.App.3d at p. 864.) The basis for the juvenile court's jurisdiction over the son was the allegation that he was at substantial risk of suffering emotional harm because his sister had been sexually abused. A panel of this court held that the juvenile court's denial of the parents' request to call their eight-year-old son to testify violated the parents' due process rights, and that the error was not harmless beyond a reasonable doubt. (Id. at p. 866.)
Noting that the jurisdictional dispute was presented through opposing experts, the juvenile court declined to conclude that the parents' “due process argument is met by the answer that [the son's] presence was unnecessary to determine whether or not this allegation [of substantial risk of emotional harm] was true.” (Amy M., supra, 232 Cal.App.3d at p. 865.) The experts disputed the “etiology of [the son's] psychological distress, ” with one opining that his sister's molestation caused him fear and mental distress that placed him at risk if returned to the parents, and the other concluding that his removal from the family home and his mother's custody was the origin of his emotional distress. (Ibid.) The juvenile court had denied the parents' motion to have their expert examine the boy in advance of the hearing, thus denying them the opportunity to independently ascertain his state of mind, and eliminating less intrusive means of countering the opinion of the department's expert. “Neither was there in this case any substitute for [the son's] testimony which might have satisfied due process.... Neither was there any report containing [the son's] statements which could have substituted for his testimony.” (Amy M., supra, 232 Cal.App.3d at p. 865.) Had the therapist testified “that [the son] would not be able to testify without substantial trauma, the juvenile court could conceivably have found that [the son] was an unavailable witness [Evidence Code section 240].” (Id. at p. 866.) Recognizing that the parents had no means of presenting the son's statements or opinions other than through his live testimony, this court concluded that the parents had a due process right to present the testimony of the son to verify or impeach the testimony of the department's psychologist and thus aid the juvenile court in its evaluation of the expert testimony. The court reversed the jurisdiction order because it could not conclude that the failure to permit the son to testify was harmless beyond a reasonable doubt. (Id. at p. 868.)
Subsequent to this court's decision in Amy M., courts have recognized that a juvenile court can, consistent with a parent's due process rights, refuse to compel the testimony of a child when “the possible benefit derivable from [the] testimony would not warrant the [psychological] injury it would cause, ” even if the requirements for a finding of unavailability under Evidence Code section 240 are not met. (Jennifer J., supra, 8 Cal.App.4th at p. 1086; See Daniela G., supra, 23 Cal.App.5th at p. 1091.) While the court in Jennifer J. reached this conclusion in the context of a selection and implementation hearing under section 366.26, the principle has been “explicitly extended” to apply to jurisdiction and disposition hearings. (Daniela G., supra, 23 Cal.App.5th at p. 1087.)
In Daniela G., the juvenile court, in the context of a jurisdiction and disposition hearing, considered allegations by a daughter and a stepdaughter that the father sexually abused them, and concluded the juvenile court did not deny the father due process when it ruled that neither girl could be compelled to testify. While the daughter indicated that she sometimes gave the father massages, the stepdaughter “described the sexual abuse in significant detail in her CASARC [Child and Adolescent Sexual Abuse Resource Center] interview, and the juvenile court found her statements to be extremely credible.” (Daniela G., supra, 23 Cal.App.5th at p. 1095.) The allegations of abuse were corroborated in part by the report from the girls' uncle, who described an incident in which the father and the daughter were in bed together. The father did not dispute the daughter's description of events, asserting instead that the conduct with the daughter was not sexual, but did dispute the stepdaughter's allegations of molest. While recognizing that “the key disputed issue was whether [the father] sexually abused [the stepdaughter], ” the court declined to find that the juvenile court's ruling that neither girl would be required to testify was a violation of due process because the “father fails to persuade us that [their] testimony would have materially affected the juvenile court's evaluation of the truth of the allegations.” (Ibid.) Noting that the father did not “identify any basis on which he hoped to impeach [the stepdaughter], ” the court concluded, “where, as here, the child describes abuse in out-of-court statements the court finds credible, and the alleged perpetrator denies the abuse but does not suggest how the child could be impeached, the court can reasonably conclude that forcing the child to testify would not materially affect its credibility assessment.” (Ibid.)
Consistent with the court's analysis in Daniela G., we conclude there was no violation of due process here because we are not persuaded that J.M.'s testimony would have materially affected the juvenile court's assessment that J.M. was abused by Father. That the child suffered physical abuse was not in dispute. Paternal grandparents provided documentation of bruises on the child's body through photos taken over a two-year period. A doctor who examined the photos of injuries to J.M.'s back and buttocks opined that the locations of the bruises were suggestive of abuse. Father and Mother did not challenge the admission of the photos depicting J.M.'s injuries. The child's accounts of abuse were specific and credible.
Rather, Father denied that he hit or spanked J.M., and sought to compel J.M. to testify on the theory that the child, under cross-examination in chambers, would state that the paternal grandparents coached him to identify Father as his abuser. But the child had stated consistently to both social workers and law enforcement officers over a period of two years that Father had hit him, causing bruises. The parents did not provide any specific evidence that J.M. had been influenced by his grandparents, any indication that his testimony in court would be any different than what he told social workers in the past, or any indication of how he would be impeached. Neither parent presented expert testimony regarding how a child is influenced by adults to falsely identify an adult as the perpetrator of abuse, nor did the parents seek to have J.M. examined by an expert to explore whether he had been coached by his grandparents to falsely identify Father as the perpetrator of the physical abuse. Had the court been presented with conflicting expert testimony, the court may have been required to hear from the child to make its own credibility assessment, as in Amy M., but no such evidence was proffered. Additionally, J.M.'s statements that Mother and paternal grandfather had previously hit him such that he was bruised or marked, further weakens Father's notion that the child was influenced to identify Father as the person who hurt him. Nor does the fact that the child reported that others also used excessive force when disciplining him or in anger tend to disprove that Father himself used such force.
The parents asserted that the paternal grandparents were motivated to urge J.M. to falsely accuse Father of abusing him to obtain leverage in the concurrent guardianship proceedings. Certainly, the parents could have explored this theory in cross-examination of the paternal grandparents, but neither parent called the grandparents as witnesses or subpoenaed them. The juvenile court was aware of the guardianship proceedings and could consider the implications of the proceedings. Additionally, Mr. Hawkinson testified that he did not believe that J.M. was coached to say that he was abused, because the six-year-old's accounts of the abuse to himself, law enforcement officers in two counties, and other social workers, were consistent over a period of two years, the child did not avoid discussing the abuse, and presented the information with eye contact and in a forthright manner. Thus, as in Daniela G., while we recognize that the key disputed issue at the jurisdiction hearing was whether Father physically abused J.M., we are not persuaded that cross-examination of the child would have made any material difference in the resolution of the dispute as Father identified it at the hearing and on appeal, i.e., that the child was coached by his paternal grandparents to identify Father as the person who physically abused him, or that J.M. was the sole witness who could have provided relevant evidence on the issue.
We also conclude that there was substantial evidence that J.M. would have been psychologically harmed if compelled to testify. (Daniela G., supra, 23 Cal.App.5th at p. 1096.) The juvenile court stated: “given [J.M.'s] extremely young age and the allegations of physical abuse, I would be remiss if I did not find it highly likely that the prospect of testifying in court would be traumatic for [J.M.].” Mr. Hawkinson was qualified as an expert in risk assessment and dependency investigations and opined it would be psychologically harmful for J.M. to testify because it would require him to have to relive the fact that he was being physically abused. J.M. continued to experience night terrors and was afraid of Father. Even with the protection of an in-chambers examination as prescribed by section 350, subdivision (b), J.M. would have been compelled to discuss the incidents of physical force and physical injury such that he would have revisited events that caused him to suffer fear. The absence of the parents during the proceedings would have ameliorated the specific concern that he would be forced to confront them, but the trauma of once again describing the events that caused physical injury and emotional distress was also of legitimate significance in the juvenile court's deliberation.
When determining whether or not to compel the testimony of a child in a dependency proceeding, the court must engage in “a careful weighing of the interests involved, ” which include both the parents' right to call and cross-examine witnesses, the probative value of the testimony, and the trauma to the child from testifying. (Jennifer J., supra, 8 Cal.App.4th at p. 1086.) Father correctly asserts that the juvenile court did not accurately articulate this standard when it orally ruled on the motion to quash the subpoena. But examining the record here based on that standard, by balancing the potential harm to J.M. against the limited probative value of his testimony where the parents, without specifics, simply asserted that the child was coached by paternal grandparents, we conclude the court did not abuse its discretion when it precluded Father from calling the child as a witness. Even if we were to determine that the court abused its discretion when it quashed the subpoena, we would find any error to be harmless beyond a reasonable doubt. As stated above, the juvenile court found J.M.'s accounts of abuse credible because they were specific and consistent over a period of years, were corroborated by photos, and were relayed to numerous adults in their official capacities. An attempt to impeach J.M. through testimony would have little, if any, effect given his demonstrated credibility. Regardless of whether J.M. testified, there was ample credible evidence that Father physically abused him. Thus, any error in failing to permit Father to call J.M. as a witness would be harmless beyond a reasonable doubt. (Amy M., supra, 232 Cal.App.3d at p. 868.)
We conclude the juvenile court did not err in granting J.M.'s motion to quash the subpoena, and the jurisdiction and disposition order should be affirmed.
B. Appeal of Six-Month Review Order: H048549
Mother and Father appeal the juvenile court's finding at the contested six-month review hearing maintaining the children's placement outside their home, arguing there is not substantial evidence to support the conclusion that the children would be at substantial risk of harm if they were to be returned to the parents' care.
1. Standard of Review
“At the review hearing held six months after the initial dispositional hearing [the six-month review hearing], ... the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (e)(1).)
“[T]o find a substantial probability that the child will be returned to the physical custody of his or her parent... and safely maintained in the home within the extended period of time, ” the court is required to find: “(A) That the parent... has consistently and regularly contacted and visited with the child. [¶] (B) That the parent... has made significant progress in resolving problems that led to the child's removal from the home. [¶] (C) The parent... has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)-(C).)
A juvenile court's determination that a child would face a substantial risk of detriment if returned to a parent's care is reviewed for substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) In determining whether substantial evidence supports the court's decision, “we review the record in the light most favorable to the court's determinations and draw all reasonable inferences from the evidence to support the findings and orders. [Citation.] ‘We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.' [Citation.]” (Kevin R. v. Superior Court (2010)191 Cal.App.4th 676, 688-689.) And the juvenile court's order, “like any other judgment or order of a lower court, is presumed to be correct, and all intendments and presumptions are indulged to support the order on matters as to which the record is silent. [Citation.]” (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 88.) Issues of fact and credibility are the sole province of the juvenile court. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705 (Constance K.).)
2. Substantial Risk of Harm if Children Returned to the Parents
A parent's substantial compliance with a reunification services plan does not preclude a finding that the child would suffer detriment if returned to the parent. (Constance K., supra, 61 Cal.App.4th at p. 704.) “[T]he court must also consider progress the parent has made toward eliminating the conditions leading to the children's placement out of home.” (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
Here, while both parents participated in their respective case plans, they did not demonstrate that they could provide for the children's safety if the children were returned to parents' care. Father had enrolled in the child abuser's class in February 2020, but had only attended nine sessions, after misrepresenting the court's ongoing requirement by telling the program's facilitator that he was no longer required to complete the program. Father and Mother continued to deny that Father had physically abused J.M. and continued to accuse J.M.'s paternal grandparents of coaching the child.
In addition to their denial of Father's abuse of J.M., the parents continued to minimize the seriousness of the domestic violence in their relationship. While Mother admitted that she had been physically violent towards Father, Father continued to deny that he was violent toward Mother other than when acting in self-defense. Father's position was contrary to the sustained allegations in the petitions that there were multiple instances of domestic violence by both parents while the children were present.
In addition to the parents' minimization and denial of child abuse and domestic violence, the parents were evasive with the Department and demonstrated an unwillingness to follow the court's orders. It was reasonable for the juvenile court to conclude that the parents could not be trusted to comply with court orders and allow the Department continued access to J.M., V.G. and M.B. if they were returned to their parents' care, given Mother's failure to comply with the court's custody order for J.S.
Both parents argue that the juvenile court erred because it made its finding of detriment based on the social worker's speculation and unsupported opinions. The parents rely on M.G. v. Superior Court (2020) 46 Cal.App.5th 646 (M.G.), in which the Fourth District Court of Appeal granted the parents' petition for extraordinary writ, finding that the department of social services failed to present sufficient evidence that the children would be at risk if returned to the parents. In M.G., the social worker minimized the success of the parents in participating and progressing in their case plans and based her opinion of risk of harm to the children on speculation the parents could be violent in the future. The Court of Appeal granted the petition because the social worker in the case “failed to articulate specific reasons why or how the children would be at risk if placed in [the parents'] care...” and the juvenile court's conclusion that the children would be at risk was based on “nebulous concerns that were not supported by the evidence.” (Id. at pp. 661-662.)
We conclude that M.G. is distinguishable from the present case. Unlike M.G., here, social worker Walker offered specific reasons supporting her concern for the safety of the children. Specifically, the parents' continued to deny Father's physical abuse of J.M., minimized the harm the domestic violence in their relationship caused to the children, and Mother failed to follow the custody order for J.S. Each of these specific facts supported the juvenile court's determination that the children would be at risk of harm if returned to the parents' care. Ms. Walker's opinion here was not based on “nebulous concerns that were not supported by the evidence.” (M.G., supra, 46 Cal.App.5that pp. 661-662.)
We find there is substantial evidence supporting the juvenile court's conclusion, by a preponderance of evidence, that returning the children to the parents' care would create a substantial risk of detriment to J.M., V.G. and M.B.'s safety, protection, and physical and emotional well-being. (§ 366.21, subd. (e).)
III. Disposition
In case numbers H047781 and H047793, the jurisdiction and disposition orders are affirmed.
In case number H048549, the six-month review order is affirmed.
WE CONCUR: Grover, J., Danner, J.