Opinion
H045963
10-04-2018
CHRISTINE J. et al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; SANTA CLARA COUNTY DEPARTMENT OF FAMILY & CHILDREN'S SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. JD024715)
Christine J. (mother) and Ryan W., Sr. (father) seek extraordinary writ relief from the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing after it granted a section 388 petition filed by real party Department of Family and Children's Services (the Department) and terminated their reunification services as to their six-year-old son, Ryan W., Jr. (Ryan). We conclude that the juvenile court must reconsider its decision because it prejudicially abused its discretion by applying the wrong standard of proof and by terminating father's services under the disentitlement doctrine. We therefore grant relief.
Subsequent statutory references are to the Welfare and Institutions Code.
I. Background
Ryan was born in June 2012 with multiple serious medical problems, and he required both heart surgery and a tracheoplasty a couple of weeks after his birth. He initially required a ventilator and later a tracheostomy, and he needs a gastronomy tube for nutrition. A dependency case was filed in San Diego County soon after Ryan's birth, but it was dismissed a few months later because he was expected to be hospitalized for a lengthy period.
During his hospitalization, the parents visited inconsistently "every several weeks." Ryan remained in either a hospital or a care facility from infancy until June 21, 2017, when a care facility released him to the parents' custody despite Ryan's "very involved medical and developmental needs." Ryan is "profoundly developmentally delayed" and "non-verbal." He cannot stand and needs a wheelchair or a walker to move around. He has a history of self-injurious behaviors, including hitting his face and head with his hands and against objects, and is a regional center client. After Ryan's release to their care, the parents failed to keep three scheduled medical appointments for Ryan in July and August 2017.
During the San Diego dependency proceedings, it was reported that mother had "borderline intellectual functioning with an IQ of 71," and in 2007 had been diagnosed with "Personality Disorder, NOS." Mother and father have been together for seven years. Father has a history of domestic violence and substance abuse. He has fathered five children by other women, and his parental rights to one child were terminated in 2009 after he failed to participate in reunification services. After Ryan's release to parental custody, father, who was unemployed, was Ryan's primary caregiver. Mother "was never the primary caregiver."
On the morning of August 24, 2017, father "noticed [Ryan's] shortness of breath." He told mother that Ryan "wasn't breathing," and she called 911. Five-year-old Ryan was transported by ambulance to the hospital; neither mother nor father accompanied him to the hospital. Mother instead went to a job interview. Upon admission, Ryan had two black eyes, bilateral subdural hematomas "of different stages," and retinal hemorrhages. One hematoma was "acute" and had occurred within a day or two, while the other was two to four weeks old. His gastronomy tube showed signs of infection due to neglect. Ryan also had bruises and abrasions on his legs.
Mother had cancelled a scheduled medical appointment earlier that week because, she said, Ryan "was fine and was going to start Kindergarten."
The parents maintained that all of Ryan's injuries were self-inflicted. However, the "medical consensus" was that "the child could not do this to himself." The nature of the injuries was "highly suggestive of non accidental trauma." While "it is not possible to rule out self injury as a mechanism," the treating physician believed that "self-abuse cannot cause this much injury." Ryan was immediately placed in protective custody.
The Department filed a petition asking the court to take jurisdiction over Ryan because he had suffered serious physical harm (§ 300, subd. (a)) and mother and father had failed to protect him (§ 300, subd. (b)). Mother did not attend the August 29, 2017 detention hearing because she needed to work that day at her job at Apple. She later claimed that the social worker had told her that it was not necessary to attend the hearing. Ryan was detained, and the parents were granted supervised visitation.
The original petition also alleged that the parents had subjected Ryan to, or failed to protect him from, "acts of cruelty" (§ 300, subd. (i)). This allegation was stricken in later amendments to the petition.
When Ryan was evaluated, it was discovered that his functional abilities had "deteriorated and plateaued" during the two months he was in parental custody, which "permanently altered his trajectory." He now required "24/7 nursing care." Ryan "will require a very high level of care, 24/7, for the duration of his life, regardless of where or with whom he resides in the future. He will never be able to care for himself, or to function independently in any meaningful capacity." He has no bond with the parents due to the fact that he has spent very little time with them.
Ryan remained hospitalized for a considerable period of time. Mother made brief visits to Ryan, but father did not visit. Father was evasive and uncommunicative with the Department. Mother insisted that the hospital or care facility was responsible for Ryan's injuries, and she called the doctor and the social worker liars. In November 2017, Ryan was discharged from the hospital and transferred to Circle Brook, a facility for developmentally disabled children with nursing needs in Loma Linda. Visitation was reduced to monthly visits. The Department purchased plane tickets for the parents to visit Ryan in December, and mother, but not father, visited him. When the Department sought an explanation from father for the wasted plane ticket, he explained that he was too sad to go because this was the time of year when one of his daughters had passed away a few years ago.
In September 2017, the Department had notified the parents that it would be recommending that they be denied services under section 361.5, subdivision (b)(6) because "the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of . . . the infliction of severe physical harm to the child . . . by a parent . . . ." The Department later recommended that both parents be denied services under section 361.5, subdivision (b)(6) and that mother also be denied services under section 361.5, subdivision (b)(2) based on a mental disability.
The jurisdictional and dispositional hearings were continued multiple times. In January 2018, the parents both submitted the petition on the social worker's report, and the court took jurisdiction over Ryan under section 300, subdivisions (a) and (b). The sustained allegations did not include any findings of "infliction of severe physical harm." The section 300, subdivision (a) findings included a finding of "serious physical harm." (Italics added.) The dispositional hearing was continued to February 2018. After the jurisdictional hearing, the Department changed its dispositional recommendation to recommend that reunification services be granted to both parents and that they be required to submit to psychological evaluations.
At the February 2018 dispositional hearing, the court removed Ryan from parental custody and placed him at Circle Brook. The court ordered reunification services for both parents and ordered psychological evaluations of both parents. Mother's case plan required a parent orientation class, a parenting class, two psychological evaluations, psychotherapy, and "training regarding the minor's specific medical issues during monthly visits, if available." Father's case plan required all of those things and also random weekly alcohol and substance abuse testing, a substance abuse assessment, participation in any treatment program recommended as part of the assessment, an aftercare program, and a relapse prevention program. Visitation remained supervised once a month.
Although the court denied mother's February 2018 request for a new appointed attorney, in April 2018, the court replaced mother's attorney with a new appointed attorney.
Father did not participate in any services or visit Ryan. Mother completed a parent orientation class and nine classes on parenting children with special needs. However, she told the social worker that the classes were " 'not helpful to her.' " Mother refused to engage in psychotherapy or counseling. She also refused to consent to needed medical and dental care for Ryan, putting his health at risk. When mother visited Ryan, he "appeared agitated and irritable," even though he was calm and relaxed and "appeared content and happy" when she was not present. Ryan was doing well in his placement.
In May 2018, the Department filed a section 388 petition seeking termination of reunification services. Mother had undergone two psychological evaluations, and both psychologists had found that she suffered from a mental disability that rendered her unable to utilize reunification services. The two psychological evaluators assigned to evaluate father reported that they had been unable to contact him despite multiple attempts. The court set a hearing on the section 388 petition for June 2018.
At the June 2018 hearing, mother's trial counsel called both of the psychologists to testify and attacked their opinions. He also elicited testimony from the social worker and from mother. He argued that mother "has done everything she had been court-ordered to do," and he urged the court to discount the psychological evaluations. Father did not attend the June 2018 hearing, and his trial counsel presented no evidence and declined to make any argument. The Department sought termination of father's services under "the disentitlement doctrine" "based on the case In Re CC, 2003, 111 Cal.App.4th at page 76" because father had not submitted to psychological evaluations. The court granted the petition and terminated reunification services for both parents. The court set a section 366.26 hearing for October 22, 2018. Mother and father filed timely notices of intent to file writ petitions and subsequently filed writ petitions challenging the court's orders.
II. Discussion
Both mother and father challenge the juvenile court's order terminating their services and setting a section 366.26 hearing. Mother attacks the court's finding that she came within section 361.5, subdivision (b)(2). Father challenges the court's finding that he was "disentitled" from receiving reunification services because he had failed to undergo psychological evaluations. We find that the court must reconsider its decision because it prejudicially abused its discretion in applying the wrong standard of proof in finding that mother came within section 361.5, subdivision (b)(2). We also conclude that the court must reconsider its decision because it abused its discretion in terminating father's services based on the disentitlement doctrine. We express no opinion on how the court should rule upon reconsideration.
A. Statutory Scheme
"Except as provided in subdivision (b), . . . whenever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians." (§ 361.5, subd. (a), italics added.) "Family reunification services, when provided, shall be provided as follows: [¶] (A) Except as otherwise provided in subparagraph (C), for a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care as provided in Section 361.49, unless the child is returned to the home of the parent or guardian." (§ 361.5, subd. (a)(1)(A), italics added.)
Section 361.5, subdivision (a) provides that mother and father were entitled to 12 months of reunification services unless section 361.5, subdivision (b) applied. Section 361.5, subdivision (b) provides: "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (2) That the parent or guardian is suffering from a mental disability that is described in Chapter 2 (commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him or her incapable of utilizing those services." (§ 361.5, subd. (b)(2), italics added.) A "mental disability" within the meaning of section 361.5, subdivision (b)(2) is defined by reference as "a mental incapacity or disorder that renders the parent or parents unable to care for and control the child adequately." (Fam. Code, § 7827, subd. (a).) "When it is alleged, pursuant to paragraph (2) of subdivision (b), that the parent is incapable of utilizing services due to mental disability, the court shall order reunification services unless competent evidence from mental health professionals establishes that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within the time limits specified in subdivision (a)." (§ 361.5, subd. (c)(1).)
Although mother and father were granted reunification services at the February 2018 disposition hearing, the Department's May 2018 section 388 petition sought termination of those services on the grounds that mother fell within section 361.5, subdivision (b)(2) and father had "refused to participate in either of his two court ordered psychological evaluations . . . ." When a parent has been granted reunification services as to a child who is three years old or older, the only avenue for terminating services before the 12-month review hearing is by means of a petition under section 388, subdivision (c).
Section 361.5, subdivision (a)(2) provides: "Any motion to terminate court-ordered reunification services prior to the hearing set pursuant to subdivision (f) of Section 366.21 [(the 12-month review hearing)] for a child described by subparagraph (A) of paragraph (1) [(a child three years of age or older)], . . . shall be made pursuant to the requirements set forth in subdivision (c) of Section 388." (§ 361.5, subd. (a)(2), italics added.)
Section 388, subdivision (c) provides: "Any party, including a child who is a dependent of the juvenile court, may petition the court, prior to the [12-month review] hearing . . . , to terminate court-ordered reunification services provided under subdivision (a) of Section 361.5 only if one of the following conditions exists: [¶] (A) It appears that a change of circumstance or new evidence exists that satisfies a condition set forth in subdivision (b) or (e) of Section 361 .5 justifying termination of court-ordered reunification services. [¶] (B) The 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 and make substantive progress in a court-ordered treatment plan." (§ 388, subd. (c)(1), italics added.) "The court shall terminate reunification services during the above-described time periods only upon a finding by a preponderance of evidence that reasonable services have been offered or provided, and upon a finding of clear and convincing evidence that one of the conditions in subparagraph (A) or (B) of paragraph (1) exists." (§ 388, subd. (c)(3), italics added.)
Services could be terminated prior to the 12-month review hearing "only if" the juvenile court made "a finding of clear and convincing evidence" that either section 388, subdivision (c)(1)(A) or section 388, subdivision (c)(1)(B) applied. Since the Department never alleged or argued that section 388, subdivision (c)(1)(B) applied to either mother or father, the juvenile court could proceed only under section 388, subdivision (c)(1)(A). The petition's allegation that section 361.5, subdivision (b)(2) applied to mother would, if found true by clear and convincing evidence, bring her within section 388, subdivision (c)(1)(A). The petition did not allege that father fell within any of the circumstances set forth in section 361.5, subdivision (b). Instead, the Department maintained that father's services could be terminated under the disentitlement doctrine solely due to his "refusal" to undergo psychological evaluations.
B. Standard of Proof
1. Background
Gary Rezowalli, a psychologist, evaluated mother and prepared a report in which he diagnosed mother with borderline intellectual functioning. Although he did not find that she had a "Personality Disorder," he found that she had personality "traits" of "narcissism, dependency, borderline, and paranoid thinking," "very poor insight and judgment, can be impulsive, and externalizes blame for her current situation." She "lacks insight into her own disabilities," and is "unable to understand that she needs help."
Ahn D. Weber, another psychologist, evaluated mother and prepared a report in which she diagnosed mother with borderline intellectual functioning and "Unspecified personality disorder." Mother was "very defensive and refused to discuss anything relating to her mental/medical health." She "has a rigid and unhealthy pattern of thinking, functioning and behaving," and she neither understood nor was "willing to understand" the complexity of Ryan's medical condition.
At the June 2018 hearing, Rezowalli testified that he believed that mother could not benefit from reunification services due to her persistent personality "traits" that resulted in her "externalizing blame, anger, paranoid thinking that people are all conspiring against me, it's not fair, discriminated against." Because mother was "suspicious" and insisted that she did not "need help," she could not utilize reunification services. These "traits" were "[v]ery resistant to therapy or counseling." In addition, her "borderline cognitive function makes everything difficult." "[H]er not wanting to accept help . . . just makes it so much harder." Weber testified that mother was "not able to see how her actions have contributed to the consequences," and she "place[d] a lot of burden and blame on the providers," characterizing herself as "the victim." Mother told Weber that she was not receiving any services, and Weber concluded that mother "really doesn't know much about her son because she is not the primary caregiver."
Mother testified at the hearing that she did not believe she had any mental health issues or any cognitive issues. The social worker testified that mother had told her that she "didn't need any counseling" and did not need any mental health services. Mother's trial counsel asked the court to discount the evaluations by Rezowalli and Weber.
The Department told the court at the June 2018 hearing that the "legal standard for a 388" was "preponderance of the evidence." It argued that it needed to establish only that there had been "a change of circumstances since the previous order and that the proposed change is in the child's best interest." Ryan's trial counsel argued that the Department had satisfied both the "preponderance of the evidence" standard and the "clear and convincing evidence" standard applicable to "the bypass criteria under section 361.5(b)(2)."
The juvenile court expressly agreed with "Ms. Baker [(the Department's trial counsel)]" that "in order to prevail, the Department has the burden to show, by preponderance of evidence, two things. One, changed circumstances. And secondly, that termination of reunification services to the parents would be in the best interests of the child, Ryan [W.]." The court "found both doctors to be credible" and found their testimony "reliable." "I believe that the -- as I stated, that the Department has met its burden."
2. Use of Wrong Standard
Although "[t]he general rule is that a trial court is presumed to have been aware of and followed the applicable law" (People v. Mosley (1997) 53 Cal.App.4th 489, 496), that presumption does not apply where the court expressly uses the wrong legal standard. Here, the juvenile court expressly made its findings under a "preponderance of evidence" standard, the standard of proof that the Department argued applied to its petition, even though section 388, subdivision (c)(3) and section 361.5, subdivision (b) clearly required the necessary findings to be made under a "clear and convincing evidence" standard.
The juvenile court's application of the wrong standard of proof was an abuse of discretion. "The scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) We therefore proceed to a consideration of whether the court's abuse of discretion was prejudicial.
3. Prejudice
"Previous cases involving the erroneous application of the preponderance of the evidence standard rather than the clear and convincing evidence standard have not found structural error requiring automatic reversal. Instead, the reported cases have analyzed the error under the Watson standard and required a showing it was reasonably probable the appellant would have achieved a more favorable result under the proper standard of proof." (Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 535.) " ' "[R]easonably probable" ' " in this context " ' " 'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" ' [Citation.]" (People v. Wilkins (2013) 56 Cal.4th 333, 351.)
In this case, the juvenile court's finding that mother suffered from a "mental disability . . . that renders . . . her incapable of utilizing" reunification services (§ 361.5, subd. (b)(2)) was based on the psychologists' reports and testimony. However, both the test results described in the reports and the testimony by the pyschologists were somewhat equivocal.
Rezowalli's report did not find that mother suffered from a personality disorder. Rezowalli testified that mother did not have an "Intellectual Deficiency Disorder" but only a "borderline" intellectual disorder. He testified that "borderline cognitive functioning" did not preclude a person from utilizing services but only made "everything difficult." Rezowalli was equivocal about whether mother had a personality "disorder" or only personality "traits" that interfered with her ability to utilize services. "I couldn't defend a personality disorder because the assessment I used didn't go that far. So in my report, I said 'traits,' used the word 'traits.' " His opinion that mother could not utilize services was premised on the combination of mother's "borderline cognitive skills and personality."
Weber's test results did not support a finding that mother suffered from an intellectual disorder. Although Weber testified that mother had both a personality disorder and an intellectual disorder, she admitted that her testing did not demonstrate an intellectual disorder, which she attributed to possible "practice effect." "Most of what she did [on the tests] was average." Weber testified that her opinion that mother could not utilize services was based on "conversations with other people" rather than her personal evaluation of mother. She also testified that it was her expert opinion that mother "could" benefit from services, "but I don't perceive her having the time that she is allowing herself to be helping."
The somewhat equivocal reports and testimony by Rezowalli and Weber demonstrate that it is reasonably probable that, if the court had applied the correct standard of proof, it would have concluded that (1) there was not clear and convincing evidence that mother's personality "traits" were a "mental disability" within the meaning of section 361.5, subdivision (b)(2), (2) the disagreement between the two psychologists as to a personality disorder rendered the existence of a personality-disorder-related "disability" less than clear and convincing, and (3) there was not clear and convincing evidence mother had an intellectual disability. Under these circumstances, the juvenile court's abuse of discretion in applying the wrong standard of proof was prejudicial.
C. Disentitlement Doctrine
1. Background
The court's February 6, 2018 order provided: "IT IS HEREBY ORDERED THAT, pursuant to Evidence Code § 730, [father] be referred for psychological evaluation." The court's February 2018 dispositional order stated: "Two psychological/psychiatric evaluations are ordered to assess the parents' capacity to parent and capacity to utilize reunification services." The court further ordered: "The parents, [mother] and [father], are ordered to cooperate with [the Department] in obtaining the evaluations . . . ." Father's case plan included: "The father is to participate in and successfully complete the following services as directed by the supervising social worker: [¶] . . . [¶] . . . [¶] . . . Two psychological evaluations."
On February 28, 2018, one of the psychologists assigned to evaluate father reported that she had been unable to contact him despite multiple attempts. On April 19, the other psychologist assigned to evaluate father reported: "[W]e called him several times, one of which he he [sic] possibly pretended he was someone else and we called his social worker multiple times. The social worker stated that he was willing to do the evaluation again, we followed up nothing."
At the June 2018 hearing on the Department's section 388 petition, the Department sought termination of father's services "based on the case In Re CC, 2003, 111 Cal.App.4th at page 76." It maintained that father's services should be terminated "based on the disentitlement doctrine and the fact that the father cannot thwart the court system by not participating in his evaluations to prevent services to be terminated for him." It argued that father "has had very little interaction either with services, the medical providers for Ryan. He's never visited Ryan since he's been in protective custody and he has not engaged in any services." "The father's conduct has made it impossible for the Court to perform its obligation to determine whether the father can utilize the FR [(Family Reunification)] services ordered to him. His conduct interferes with the legal rights of Ryan Junior to proceed to permanency planning if his parents can't benefit from services. [¶] A parent, in this case, the father, should not be permitted to unilaterally thwart the Court's ability to determine if they suffer from an impairment that renders them incapable of utilizing services by refusing to be evaluated." The Department urged that "the change in circumstances since disposition is his refusal to do the two court-ordered psychological evaluations." The court terminated father's services based on its finding that father's "refusal" to undergo evaluations "does disentitle him to services and present a changed circumstance under the law."
2. Analysis
The juvenile court's termination of father's services was not based on a finding that he fell within any of the circumstances listed in section 361.5, subdivision (b) and therefore was not a finding that he fell within section 388, subdivision (c)(1)(A). Instead of making any of the findings required by the applicable statutes, the juvenile court accepted the Department's assertion that no such finding was necessary because the "disentitlement doctrine" could be utilized as a substitute for such a finding.
The juvenile court's order was based on In re C.C. (2003) 111 Cal.App.4th 76 (C.C.). C.C. was an appeal by the minor from the juvenile court's dispositional order granting her mother reunification services. (Id. at p. 80.) The mother "was mentally ill" and believed that " 'demons' " were threatening the minor. (Id. at pp. 80-81.) At the detention hearing, the court "authorized" psychological evaluations of the mother. (Id. at pp. 81, 91.) The maternal grandmother believed that the mother was " 'schizophrenic,' " and the social worker's attempts to interview the mother were unsuccessful due to the mother's delusions. (Id. at p. 81.) The mother, who was incarcerated, refused to participate in psychological evaluations, receive psychological treatment, talk to a doctor, or leave her cell. (Ibid.) After a jurisdictional hearing, the court found that the mother suffered from mental health problems that were dangerous to the minor and took jurisdiction over the minor. (Id. at p. 82.) At the dispositional hearing, the minor argued that the mother should be denied services "pending her participation in a psychological evaluation." (Ibid.) The juvenile court concluded that, due to the mother's refusal to submit to psychological evaluations, it lacked the power to deny the mother services under section 361.5, subdivision (b). (Id. at pp. 80, 82.)
On appeal, the Fourth District Court of Appeal acknowledged that the mother's refusal to submit to psychological evaluations precluded the trial court from denying her services under section 361.5, subdivision (b)(2). (C.C., supra, 111 Cal.App.4th at p. 83.) However, the Fourth District resorted to "[t]he principle that a court may refuse assistance to a party who fails to comply with a court order . . . ." (Id. at p. 84.) As the Fourth District acknowledged, this principle, known as the "disentitlement doctrine," had been previously applied in the dependency context only where a party had abducted the child. (Id. at pp. 84-85.) Nevertheless, the Fourth District posited that this principle "extends to other kinds of conduct" where that conduct "frustrates the ability of another party to obtain information it needs to protect its own legal rights." (Ibid.) In support of this extension, the Fourth District relied on a civil case in which an appellate court had applied the appellate disentitlement doctrine to dismiss the appeal of judgment debtors who had refused to comply with a trial court order to respond to postjudgment interrogatories aimed at enforcement of the judgment. (Id. at p. 85.)
In the Fourth District's view: "Mother's refusal to participate in a psychological evaluation in this case is comparable to the conduct of the parties in the above cases [(the abduction cases and the civil appellate disentitlement case)], which was held to bar their right to seek the assistance of the courts. Mother's conduct makes it impossible for the court to perform its obligation to determine, pursuant to section 361.5(b)(2), whether her mental disability renders her incapable of utilizing reunification services. Mother's conduct also interferes with the legal rights of Minor [to a timely progression to permanency]." (C.C., supra, 111 Cal.App.4th at p. 85.)
The Fourth District used very broad language to describe its holding. "Where, as here, the parent is not cooperative, a court has the inherent power under the disentitlement doctrine to bar that parent from seeking further assistance from the court, including the provision of reunification services. The Legislature could not have intended otherwise." (C.C., supra, 111 Cal.App.4th at p. 85.) "Seeking services . . . brings into play the principle underlying the disentitlement doctrine, that a party who refuses to comply with the directives of the court cannot seek the assistance of the court in securing its own legal rights." (Id. at p. 88.) "Mother's refusal to be evaluated makes it impossible for the court to determine whether she should receive reunification services. Moreover, Mother's conduct plainly has interfered with Minor's and DPSS's ability to collect evidence, since without a psychological evaluation they cannot effectively argue she is not entitled to reunification services under section 361.5(b)(2). Hence, it is appropriate to apply the disentitlement doctrine against her." (Id. at p. 89.)
The Fourth District rejected the mother's argument that the plain language of section 361.5, subdivision (b) precluded utilizing the disentitlement doctrine as the basis for a denial of services. (C.C., supra, 111 Cal.App.4th at pp. 89-90.) "Where a parent refuses to consent to a psychological evaluation, giving a literal meaning to the requirement of section 361.5(b)(2) that the court grant reunification services absent two evaluations supporting denial manifestly 'would result in absurd consequences that the Legislature did not intend.' [Citation.] The 'spirit of the enactment' [citation] is clear: The Legislature intended that, where a parent's mental impairment renders him or her incapable of reunifying within the time allowed by statute, the case proceed directly to the permanency planning stage so that the delay and disruption in the ultimate placement of the minor can be minimized. A parent should not be permitted to unilaterally thwart the intent of the statute by refusing to be evaluated." (Id. at p. 90.) Notwithstanding the broad language in its opinion, the Fourth District's actual holding was far more limited. The Fourth District noted that the juvenile court had lacked the power to order psychological evaluations prior to taking jurisdiction and had not made such an order after it took jurisdiction. Thus, there was no basis for denying the mother services. It remanded the matter to the juvenile court for it to decide whether to order evaluations. (Id. at p. 91.)
The Fourth District's broad language in C.C. seemed to suggest that a court was empowered under the disentitlement doctrine to deny a parent reunification services whenever the parent "is not cooperative" or "frustrates the ability of another party to obtain information it needs to protect its own legal rights." (C.C., supra, 111 Cal.App.4th at pp. 84-85.) We do not believe that the disentitlement doctrine creates such a broad power to deny reunification services in light of the Legislature's meticulous statutory scheme requiring that reunification services be provided to parents unless specific statutorily-mandated findings are made. We are not aware of any other published case that has ever held that a parent may be denied reunification services based solely on the disentitlement doctrine. The only published dependency cases that have relied on C.C. are two cases involving appellate disentitlement, a distinct and well-recognized application of the disentitlement doctrine.
In In re E.M. (2012) 204 Cal.App.4th 467 (E.M.), the mother took the children to Mexico while the section 300 petition was pending and before a jurisdictional hearing could be held. (E.M., at pp. 469-472.) Protective custody and arrest warrants were issued for the mother and the children, but they remained in Mexico. The warrants were later recalled. Three years later, the court held the jurisdictional and dispositional hearings in the mother's absence, and the children were ordered to remain in the mother's custody in Mexico with family maintenance services. (E.M., at p. 473.) The mother appealed from the dispositional order. (Ibid.) At a subsequent review hearing, the mother's trial counsel asked the court to dismiss the dependency case. However, the social workers, the court, and the minor's counsel were unable to obtain any information about the mother's compliance with the case plan or to contact the children. The mother filed another appeal from the juvenile court's order continuing jurisdiction. (E.M., at pp. 473-474.) The Second District Court of Appeal held that the mother's flight with the children to Mexico was a proper basis for application of appellate disentitlement. "By absconding to Mexico with the children, mother effectively undermined and frustrated the core purpose of California's dependency law—to protect and benefit the interests of children who are the subject of a section 300 petition." (E.M., at p. 476.) It dismissed both of the mother's appeals under the appellate disentitlement doctrine. (E.M., at pp. 478-479.)
In In re A.K. (2016) 246 Cal.App.4th 281 (A.K.), the father appealed from a dispositional order removing the child from parental custody and granting him reunification services. (A.K., at p. 284.) The father had refused to communicate with the social worker and had refused to comply with the court's pre-jurisdiction order that he drug test. (Ibid.) The Fourth District dismissed his appeal under the appellate disentitlement doctrine. "Of course, it is not unusual for parents in dependency cases to fail to cooperate completely with CFS and the juvenile court. Father's behavior, however, has demonstrated an extraordinary and unmitigated pattern of obstruction." (A.K., at p. 286.)
"Appellate disentitlement 'is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction . . . .' [Citation.] . . . In dependency cases, the doctrine has been applied only in cases of the most egregious conduct by the appellant, which frustrates the purpose of dependency law and makes it impossible to protect the child or act in the child's best interests." (E.M., supra, 204 Cal.App.4th at p. 474.) The appellate disentitlement doctrine is based on the appellant's "attitude of contempt" for the court's orders. For instance, in MacPherson v. MacPherson (1939) 13 Cal.2d 271 (MacPherson), while a dissolution proceeding was ongoing, the husband took the children to Mexico. After the wife succeeded in obtaining a court order granting her custody and finding him in contempt of court, the husband appealed. The California Supreme Court found that the husband was disentitled to appeal. "In secluding the children in a foreign country and alienating them, appellant violated not only his agreement with plaintiff and the provisions of the interlocutory and final decrees of divorce, but he has also wilfully and purposely evaded legal processes and contumaciously defied and nullified every attempt to enforce the judgments and orders of the California courts, including the very order from which he seeks relief by this appeal. Such flagrant disobedience and contempt effectually bar him from receiving the assistance of an appellate tribunal. A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state." (MacPherson, at p. 277.)
We are not persuaded that the juvenile court properly applied the disentitlement doctrine in this case based solely on father's failure to submit to psychological evaluations. First, we question the Fourth District's broad conclusion in C.C. that reunification services may be properly denied to a parent based solely on the disentitlement doctrine. The Legislature has expressly limited the circumstances under which reunification services may be denied to a parent or prematurely terminated. Its explicit decision to bar courts from denying or terminating reunification services on any other basis does not result in absurdity, as the Fourth District asserted, but instead was well within the Legislature's prerogative.
Second, even if we accepted the Fourth District's conclusion in C.C., we would not find C.C. applicable here. Unlike the situation in C.C., where the record contained undisputed evidence that the mother was mentally ill, the record in this case contains no indication that father suffers from any "mental disability." A mentally ill parent's refusal to submit to psychological evaluations substantially interferes with the court's ability to determine whether reunification services should be denied under section 361.5, subdivision (b)(2), but the same cannot be said where there is no indication that the parent suffers from a mental disability. In a case such as this one, father's failure to submit to evaluations was little more than a failure to comply with his case plan. The Legislature's very precise statutory scheme does not permit a court to prematurely terminate services simply because a parent has failed to comply with the case plan.
The Department claims that there are indications in the record that father suffers from a "mental disability." It points to a social worker's report noting that father's "grief and loss" over the deaths of his father and daughter were "symptoms that are consistent with possible depression" and that father "exhibited symptoms consistent with substance use." We do not view these as indications that father suffers from a "mental disability" within the meaning of section 361.5, subdivision (b)(2).
A parent's failure to comply with the case plan may form part of the basis for termination of reunification services under section 388, subdivision (c)(1)(B). However, the Department did not seek to terminate father's services under that provision. --------
Third, even under C.C. and its progeny, the disentitlement doctrine may be applied in a dependency case only where there is "the most egregious conduct by [a party], which frustrates the purpose of dependency law and makes it impossible to protect the child or act in the child's best interests." (E.M., supra, 204 Cal.App.4th at p. 474.) Father's failure to submit to psychological evaluations was not "the most egregious conduct" and did not "frustrate[] the purpose of dependency law" or frustrate attempts to protect Ryan and his best interests. Given the absence of any indication that father suffered from a mental disability, his failure to submit to psychological evaluations was not egregious and had no substantial impact on the court's ability to protect Ryan or serve his best interests.
In sum, this is not a case in which father's failure to submit to psychological evaluations could merit application of the disentitlement doctrine as a nonstatutory basis for termination of his reunification services. The juvenile court abused its discretion in concluding that it did.
III. Disposition
Let a preemptory writ of mandate issue commanding the juvenile court to (1) vacate its June 2018 order granting the Department's May 2018 petition, (2) vacate its order setting a section 366.26 hearing, and (3) reconsider that petition. The juvenile court may allow the Department to amend its petition if the Department so requests.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Bamattre-Manoukian, Acting P. J. /s/_________
Danner, J.