1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication or 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 TWO

Frances C.,

Petitioner,

v.

THE SUPERIOR COURT OF 

SOLANO COUNTY,

Respondent;

SOLANO COUNTY HEALTH AND 

SOCIAL SERVICES DEPT.,

Real Party in Interest.

 A164960

 (Solano County

 Super. Ct. No. J44964)

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.

1 Further unspecified statutory references are to the Welfare and 

Institutions Code.
2

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 thenboyfriend.

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 

2 J.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.
3

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 (Gtube) in place to be used for feeding when he was not eating or drinking 
4

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. 
5

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 
6

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 inperson 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 
8

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 inperson 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 
9

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. 
10

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.
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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-to7 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. 
12

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 
13

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 

8 Mother does not contest the juvenile court’s finding that reasonable 

services were offered in this case. 
14

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-andfamily 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 
15

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 
16

final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 

8.490(b)(2)(A).) 
17

_________________________

Miller, J.

WE CONCUR:

_________________________

Richman, Acting P.J.

_________________________

Stewart, J.

A164960, Frances C. v. Superior Court