Frances C. v. Superior Court CA1/2 ( 2022 )

Filed 6/24/22 Frances C. v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
Frances C.,
Petitioner,
v.
THE SUPERIOR COURT OF A164960
SOLANO COUNTY,
(Solano County
Respondent;
Super. Ct. No. J44964)
SOLANO COUNTY HEALTH AND
SOCIAL SERVICES DEPT.,
Real Party in Interest.
Frances C. (Mother) petitions this court for extraordinary relief from
dependency court orders that terminated her reunification services after six
months and set a hearing under Welfare and Institutions Code section 366.26
to select a permanent plan for her 10-year-old son, J.C. (Minor).1 Mother
argues there was not sufficient evidence to support the juvenile court’s
termination of reunification services at the six-month mark. We agree, and
we shall grant her petition.
Further unspecified statutory references are to the Welfare and
1
Institutions Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
A. Previous Dependency History
In 2011, before Minor was born, a petition was filed in Alaska on behalf
of Mother’s oldest child, Minor’s half-brother (Brother), who was taken into
the custody of Anchorage County Child Welfare Services. Mother completed
reunification services and Brother was returned to her care 14 months later,
when Minor was a few months old. Mother subsequently gave legal custody
of Brother to a friend, with whom Brother continues to reside.
In 2018, a petition was filed on behalf of Minor in Alameda County
Superior Court, and Minor was detained. The following allegations were
sustained at the jurisdiction hearing in 2019: while Mother was at work and
Minor was in the care of her boyfriend J.D., Minor sustained non-accidental
life-threatening injuries, including devastating brain injury that resulted in
the loss of function of much of the left side of Minor’s brain, affecting his
speech and language ability; that during Minor’s hospitalization, older
injuries were discovered including three back rib fractures and a kidney
injury; that in 2016 while Mother was asleep on the couch Minor sustained
second degree burns on his face, chest, and arms after pulling a pot of hot
water on himself; and that Mother’s dependency history in Alaska involved
Brother sustaining severe injuries while in the care of Mother’s then-
boyfriend.2 Reunification services were offered to Mother, and Minor was
returned to her care in January 2020 under a plan of family maintenance
services. The matter was transferred to Solano County, where Mother and
2J.D., the boyfriend who abused Minor in 2018, is the father of Minor’s
younger half-sister. The boyfriend who abused Brother several years before
is Minor’s alleged father. He is not a party to this writ petition.
2
Minor were living, and in December 2020, family maintenance services were
terminated and Mother was reunified with Minor.
B. June-July 2021 – Petition and Detention
On June 8, 2021, the Solano County Health and Social Services
Department (Department) filed a petition under section 300 on behalf of
Minor, then nine years old, and his half-sister (Sister), then about two years
old.3 As relevant here, the petition alleged that Minor was at substantial risk
of serious harm and/or neglect as a result of Mother’s failure to adequately
protect and supervise him, and as a result of Mother’s inability to provide
regular care for him because of her mental illness. (§ 300, subd. (b)(1).) The
petition alleged three sets of facts:
First, Mother dropped off Minor at a hospital without making
appropriate arrangements for him. When he was later transported to a
children’s hospital, Mother was contacted and declined to respond in person,
stating that she needed to address her own mental health issues. Minor was
medically fragile as a result of injuries and brain trauma, and Mother
reported she could not meet his needs and behaviors in her home upon his
release from the hospital, which left Minor without a caregiver.4 In addition,
in May 2021 Mother had missed three medical appointments for Minor.
3 In her writ petition, Mother does not challenge the juvenile court’s
orders regarding Sister; we discuss the facts and orders as they pertain to
Sister as background to the parties’ arguments concerning Minor. We do not
discuss allegations in the Department’s petition that pertain only to Sister or
the children’s alleged fathers.
4 The Department later provided details about Minor’s medical
conditions, which required constant care and treatment. His diagnoses
included cerebral palsy, intellectual disability, and dysphagia—
oropharyngeal phase (difficulty swallowing). He had a gastrostomy tube (G-
tube) in place to be used for feeding when he was not eating or drinking
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Second, Mother had mental health conditions for which she failed to
seek treatment and which periodically leave her incapable of caring for and
supervising Minor. Mother’s mental health decline was evidenced by
increasing symptoms of depression, anxiety and anger outbursts, and a
recent diagnosis of Posttraumatic Stress Disorder. It was reported that
Mother “disassociates and has hour-long episodes of crying under the stress
of attending to [Minor’s] needs.”
Third, Mother had current issues of domestic violence with her current
partner. In May 2021, Mother’s partner sustained a fracture to her hand
after Mother kicked a door closed during an argument in the home, and it
was reported that on different occasions Mother threw objects in the home.
At the initial hearing on June 9, the juvenile court ordered Minor
detained.5 The court ordered supervised visitation between Mother and
Minor once a week for one hour.
Then, on July 8, 2021, the Department filed an amended petition,
adding allegations that in late June Mother had engaged in a domestic
violence incident with her partner in the presence of Sister, and that the
safety plan that Mother and her partner had agreed to had not successfully
reduced the risk of harm to Sister. The court then ordered the detention of
Sister, but the Department’s attempts to detain her were unsuccessful, and
Sister remained in Mother’s care.
appropriately. Minor had been placed in a foster home upon his release from
the hospital.
5 Sister was not ordered detained at that time. The report prepared by
the Department before the hearing noted that Mother had arranged for
Mother’s current partner to care for Sister and that the Department assessed
that Sister was currently safe.
4
C. July-August 2021 – Jurisdiction and Disposition
According to the report prepared by the Department for the
jurisdiction/disposition hearing, Minor had been in six different placements
since his detention in June. Five were emergency placements resulting from
the difficulty of meeting Minor’s needs. Minor’s medical needs included using
a G-tube for periodic feeding in view of his difficulty swallowing, and limited
mobility, requiring use of a wheelchair. Minor’s behaviors included smearing
his feces on himself and the walls, using profanity and sexualized language,
hitting and biting, and having trouble controlling his emotions.
The Department reported that with Minor being placed in six
placements over a short period, including one in Fresno, Mother was unable
to have in person visits, but was having phone calls with Minor. Mother told
the Department that she had been offered an in-person visit with Minor in
June, and that she was informed of the visit only one hour in advance and
could not attend because she had job training and daily therapy.
The Department reported that Mother continued to struggle with her
mental health, and was engaging in domestic violence in the presence of the
children. Based on Mother’s behavior and statements made by her recent
live-in partner, the Department believed Mother was abusing substances.
At a contested jurisdiction/disposition hearing, held on August 19,
2021, the juvenile court sustained the allegations against Mother as to Minor
and Sister with respect to section 300, subdivision (b)(1), as further amended
with respect to the facts concerning domestic violence.6
6 The second amended petition alleged that Mother has had issues of
domestic violence with former partners and her current partner; that after
the filing of the original petition there were additional domestic violence
concerns, including arguments in the presence of Sister; that Mother’s
partner expressed concerns about Sister’s safety that could not be mitigated
5
The court adopted a case plan for Mother with four service objectives:
(1) Stay free from illegal drugs and show your ability to live free from drug
dependency and comply with all required drug tests; (2) Develop positive
support systems with friends and family; (3) comply with medical or
psychological treatment; (4) remove identified dangers to your children’s
physical health. Mother’s responsibilities were to engage in counseling,
parenting education, and substance abuse testing, with substance abuse
treatment if test results were positive. The court ordered supervised
visitation between Minor and Mother at least once a week for one hour per
week.
The court continued the protective custody warrant for Sister and
scheduled a six-month review hearing for February 15, 2022.
D. February-March 2022 – Department Seeks to Terminate
Reunification Services
On February 1, 2022, the Department filed a status review report
recommending that the court terminate family reunification services and set
a permanency planning hearing under section 366.26 as to Minor. The
Department also filed a section 388 petition to terminate reunification
services, which referred to the status review report.
The Department reported that Mother had not had any in-person visits
with Minor. In August 2021, the day after the contested
jurisdiction/disposition hearing, Minor was placed at a non-foster care
treatment home in Riverside County, where he remained at the time of the
contested hearing. Mother expressed that she is comfortable with the current
in light of Mother’s reluctance to allow the Department to have in-person
contact with Sister; and that due to the ending of the relationship between
Mother and partner, the agreed-upon safety plan was no longer a viable
option to safely maintain Sister in Mother’s home.
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placement, where Minor was happy, safe, and comfortable and his needs were
being met. The Department began contacting Mother to arrange for in-
person visits in September, after Minor was stable in the placement. Since
then, the Department tried to arrange visits, but Mother would not cooperate
with agreed-upon dates and times, and failed to show up for a plane flight
after a ticket was purchased for her to travel to see Minor in October 2021.
Mother’s refusal to visit was based on her fear that the protective custody
warrant for Sister would be enforced. Although Mother reported to the
Department that she spoke with Minor weekly by phone, staff at Minor’s
placement did not confirm Mother’s report.
The Department reported that Mother was in compliance with the
counseling portion of her case plan. She was meeting regularly with a
psychiatrist, taking all prescribed medications, and discussing the trauma
she had experienced and how it affects her and her children.
The Department reported that Mother was in partial compliance with
the parenting education portion of her case plan. Mother initially refused to
participate on the grounds that she had taken classes in the past and did not
feel additional classes were necessary. She provided the Department a
certificate reflecting her completion of a course in 2019. In December 2021,
the social worker explained that the case plan included education to address
concerns that she could not manage Minor’s behaviors, and that classes
would focus on giving her tools and strategies to respond to Minor’s needs.
Mother then told the social worker she would “get into the class so I can
sharpen my skills and better understand and care for [Minor’s] needs.” She
enrolled in a group class, and was scheduled to complete it in late January.
That group class would be followed by one-on-one training to address issues
related to special needs children. Mother expressed that she misses Minor
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and wants him home, but that she was not yet able to provide care for Minor
or meet his specific needs. She informed the social worker that she would
need certain services to be in place when Minor returns to her care, which is
not something a parenting class could offer.
The Department reported that Mother was not in compliance with the
drug testing portion of her case plan. The Department reported that Mother
had missed scheduled tests before the jurisdiction/disposition hearing. Since
then, Mother had been asked to test but had refused because she felt drug
testing was a waste of time and because she was afraid she would be arrested
because of the outstanding protective custody warrant for Sister. Starting in
December 2021, Mother had expressed willingness to test if there was a
guarantee that she would not be arrested. When Mother was told that the
testing center checked names only to see if testing had been scheduled,
Mother reported she had lost her driver’s license and not yet received a
replacement. The social worker told Mother that in that case, Mother would
have to meet with the social worker in person to have her picture taken, but
Mother was unwilling to come to any Department office because of her
concerns about Sister.
A combined six-month review and section 388 contested hearing was
held on March 30, 2022, at which the court heard testimony from the social
worker. The social worker testified as to attempts to arrange visitation after
October 2021. The social worker consulted with her manager and determined
in late January or early February that the Department would permit an in-
person visit for Mother even with the outstanding warrant, and Mother told
the social worker that she was open to traveling. The social worker consulted
with Mother and Minor’s placement facility about visits in March, and agreed
that a visit would take place on March 16. But the social worker was out
8
sick, and could not complete the paperwork, so the visit did not take place.
The social worker testified that she was currently working with Mother and
the facility to arrange an in-person visit.
The social worker also testified that on each of her visits to the facility,
which had taken place each month since December 2021, she spoke with staff
about Mother’s contacts with Minor, and they always said she called
“occasionally.” Staff reported that Minor enjoyed talking to Mother, that he
asked about Sister, and that Minor did not exhibit any negative behavioral
changes after the calls. The social worker testified that when she asked for
more specific information about the frequency of calls, she was told that the
facility has a record of her contacting Minor three times since his arrival in
August. The house administrator informed the social worker that the facility
did not have a written log of calls, and that “they just went through the
phone system to look for her number and they saw the three calls.” Apart
from phone calls, Mother and Minor participated in a child and family team
meeting over Zoom in October 2021.
The parties stipulated that Mother’s parenting instructor had been
contacted and confirmed that Mother had completed her group parenting
class but had not yet begun one-on-one training. The parties also stipulated
that although Mother was not willing to place Sister in the foster care
system, Mother had identified two placement options for Sister that had not
worked out, and that Mother was exploring other options.
Counsel for the Department argued that reunification services should
be terminated because there was clear and convincing evidence that Mother’s
action or inaction, in failing to visit Minor regularly and in not making
substantive progress in her case plan, created a substantial likelihood that
reunification would not occur. Minor’s counsel agreed with the Department.
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Mother’s counsel argued that the evidence did not show a substantial
likelihood that reunification would not occur by the time 12 months had
passed. She pointed out that there should be no expectation that Mother
would be ready to reunify at six months, and argued that in view of what
Mother had already accomplished, there was much that Mother could do in
the next few months. She also noted that although Mother had not fully
cooperated with the Department, this was not a case in which a parent had
completely failed to cooperate.
At the conclusion of the hearing, the juvenile court granted the
Department’s section 388 petition, based on its findings that reasonable
services had been provided, and its findings by clear and convincing evidence
that because of “significant failure” by Mother with respect to visitation and
substantive progress on her case plan there was not a substantial likelihood
that Minor could be returned to Mother within six months. The court stated
that Mother had made some “good progress” on her case plan, but that the
progress was “not substantive in light of the risks at hand.” The court stated
several times that the issues of progress on the case plan and visitation could
be rectified, and stated that it would be “more than happy to revisit” the
issues, but nevertheless terminated reunification services, and set a
permanency planning hearing under section 366.26 for July 26, 2022. This
writ petition followed.
DISCUSSION
A. Disentitlement
The Department argues that we should dismiss Mother’s petition under
the disentitlement doctrine because of Mother’s failure to comply with the
juvenile court’s detention order, protective custody warrant, and jurisdiction
order with respect to Sister. We decline to do so.
10
As a reviewing court, we have the “inherent power to dismiss an appeal
when the appealing party has refused to comply with the orders of the trial
court.” (In re Z.K. (2011) 201 Cal.App.4th 51, 63.) So-called “[a]ppellate
disentitlement” is “ ‘a discretionary tool that may be applied when the
balance of the equitable concerns make it a proper sanction,’ ” which is used
in dependency proceedings “only in cases of the most egregious conduct by the
appellant that frustrates the purpose of dependency law and makes it
impossible for the court to protect the child or act in the child’s best
interests.” (Ibid; see also In re E.E. (2020) 49 Cal.App.5th 195, 211
[“[d]isentitlement should be reserved for those cases where the parent’s
violation of court orders makes it impossible for the juvenile court to protect
the child’s best interests”].)
We recognize that Mother’s failure to comply with the orders pertaining
to Sister affects the juvenile court’s ability to protect Sister’s interests.7 (See
In re Kamelia S. (2000) 82 Cal.App.4th 1224, 1229 [by absconding with and
secluding child in violation of juvenile court orders, parent “undermines and
frustrates the entire purpose of the dependency law” because “[i]t is virtually
impossible for the court to extend its protection” to a minor who is
unavailable at an unknown location].) But as to Minor, the effect of Mother’s
failure to comply with orders pertaining to Sister is limited to Mother’s
noncompliance with the parts of her case plan for Minor that Mother fears
might lead to her arrest and Sister’s detention. Thus Mother refused to
appear for drug testing at Department-specified locations, to meet face-to-
7 We note, however, that the social worker testified that Mother
participated in monthly video visits with a social worker concerning Sister.
Mother made sure the social worker could see Sister during those visits, and
Sister has appeared to be in good health.
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face with the social worker at the Department office, and to visit Minor in
person.
However, even though Mother has not fully complied with her case
plan, she has complied in part. (See M.C. v. Superior Court (2016) 3
Cal.App.5th 838, 844 (M.C.) [declining to apply the disentitlement doctrine
where parent “made some, albeit minimal, attempt to comply with her case
plan”].) And the Department has not shown that Mother’s failure to fully
comply with her case plan has prevented the juvenile court from protecting
Minor. In these circumstances, we will not apply the disentitlement doctrine
to dismiss Mother’s challenge to the juvenile court’s early termination of
reunification services.
B. Merits
We turn now to Mother’s argument that there was insufficient evidence
to support the termination of reunification services at the six-month review.
1. Applicable Law and Standard of Review
The Welfare and Institutions Code provides that as a general matter 12
months of reunification services “shall be provided” to the parent where a
detained child is three years of age or older. (§ 361.5, subd. (a)(1)(A).) The
framework for terminating services before the end of the 12-month period is
set forth in subdivision (a)(2) of section 361.5. (See M.C., supra, 3
Cal.App.5th at pp. 842-843 [discussing the circumstances in which
reunification services may be terminated under § 361.5, subd. (a)(2)].) As
relevant here, services may be terminated on the basis of a petition filed
under subdivision (c) of section 388, alleging that “[t]he action or inaction of
the parent or guardian creates a substantial likelihood that reunification will
not occur, including, but not limited to, the parent’s or guardian’s failure to
visit the child, or the failure of the parent or guardian to participate regularly
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and make substantive progress in a court-ordered treatment plan.” (§ 388,
subd. (c)(1)(B); § 361.5, subd. (a)(2).) The early termination of services
requires the juvenile court to find by a preponderance of the evidence that
reasonable services have been offered or provided, and to find by clear and
convincing evidence that the parent or guardian’s inaction creates a
substantial likelihood that reunification will not occur.8 (§ 388, subd. (c)(3).)
We review the juvenile court’s decision to grant or deny a section 388
petition for abuse of discretion, and we review the factual findings underlying
the decision for substantial evidence. (In re Jasmon O. (1994) 8 Cal.4th 398,
415-416.) “Substantial evidence is evidence that is ‘of ponderable legal
significance,’ ‘reasonable in nature, credible, and of solid value,’ and
‘ “substantial” proof of the essentials which the law requires in a particular
case.’ ” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006 (O.B.).)
We “must account for the clear and convincing standard of proof when
addressing a claim that the evidence does not support a finding made under
this standard,” such as the challenge here to the juvenile court’s decision to
terminate reunification services. (O.B., supra, 9 Cal.5th at p. 1011; see § 388,
subds. (c)(1)(B) & (c)(3).) “When reviewing a finding that a fact has been
proved by clear and convincing evidence, the question before the appellate
court is whether the record as a whole contains substantial evidence from
which a reasonable fact finder could have found it highly probable that the
fact was true. In conducting its review, the court must view the record in the
light most favorable to the prevailing party below and give appropriate
deference to how the trier of fact may have evaluated the credibility of
8Mother does not contest the juvenile court’s finding that reasonable
services were offered in this case.
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witnesses, resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (O.B., supra, 9 Cal.5th at pp. 1011-1012.)
2. Analysis
To prevail on its section 388 petition, the Department was required to
present clear and convincing evidence that because of Mother’s failure to visit
Minor, or Mother’s failure to participate regularly and make substantive
progress in her case plan, there was a substantial likelihood that
reunification would not occur. (§ 388, subds. (c)(1) & (3).) The Department
did not meet its burden.
In considering the issue of visitation, we bear in mind that since the
jurisdiction/disposition hearing, Minor has been placed in Riverside County,
at a considerable distance from Mother. Although Mother had no in-person
contact with Minor since his detention, and had failed to show up for a plane
flight that the Department had arranged, she had positive telephone contact
with him at least three times, and had participated in a Zoom child-and-
family team meeting with him. After Mother reported to the Department
that despite the outstanding warrant for Sister she was willing to get on a
plane to see Minor, plans were made for an in-person visit between Mother
and Minor in mid-March. That visit did not take place, not because of
Mother, but because the social worker was out sick and could not complete
the paperwork. And at the time of the hearing on the section 388 petition at
the end of March, plans were again being made for a visit. This is not
substantial evidence to support a finding by clear and convincing evidence
that Mother’s failure to visit Minor creates a substantial likelihood that
reunification will not occur, particularly in view of Mother’s statements to the
Department that she misses Minor and wants him home, and her recognition
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that she will need supportive services when he returns to her care. (§ 388,
subds. (c)(1) & (3).)
In considering Mother’s participation in her case plan and substantive
progress, we bear in mind that the parent of a child three years or older is
generally provided 12 months of reunification services. (§ 361.5, subd.
(a)(1)(A).) This means that what counts as “substantive” progress will differ
over time. Here, at the six-month review, Mother had fully complied with her
case plan objective as to her mental health and had partially completed the
parenting education portion of her case plan. Several months remained for
Mother to complete the remainder of the education objective, which involved
one-to-one training. Mother had expressed particular interest in and need for
that one-to-one training, and nothing in the record suggested that she would
not complete it. Mother was not in compliance with the drug-testing case
objective, but some progress had been made: Mother initially refused to drug
test but eventually said she would test if she could do so without risking
Sister being detained. Although she had not completed any testing at the
time of the hearing on the section 388 petition, several months remained for
Mother to test and, if necessary, participate in substance abuse treatment.
This evidence does not support a finding that Mother failed to make
substantive progress in her case plan, much less support a finding by clear
and convincing evidence that Mother’s failure to participate regularly and
make substantive progress in her case plan creates a substantial likelihood
that reunification with Minor will not occur. (§ 388, subds. (c)(1) & (3).)
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue
directing the juvenile court to vacate its orders terminating reunification
services and setting the case for a section 366.26 hearing. Our decision is
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final as to this court immediately. (Cal. Rules of Court, rules 8.450(a),
8.490(b)(2)(A).)
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A164960, Frances C. v. Superior Court
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