Filed 9/11/26 M.J. v. Superior Court CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
M.J., Petitioner,
A176630
v. THE SUPERIOR COURT OF LAKE (Lake County Super. Ct. COUNTY, Nos. JV320725B, JV320725C, JV320725D)
Respondent;
LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Petitioner M.J. (father) has four children who are the subjects of the instant dependency, initiated in May 2025. On September 10, 2025, the juvenile court ordered father to participate in a psychological evaluation, and the Lake County Department of Social Services (department) scheduled an appointment for father to have that evaluation in October. Father failed to attend, offering a somewhat dubious excuse of car trouble. In January 2026, the department moved to terminate father’s reunification services on the basis of his failure to comply with the court’s order and the doctrine of disentitlement. The department subsequently scheduled a second evaluation for father to take place at the end of April, but he again failed to attend, again on the basis of purported car trouble. At the six-month review hearing
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in May, the juvenile court granted the department’s motion, terminated father’s reunification services, and set a hearing under Welfare and Institutions Code1 section 366.26 with respect to three of his children.
Father has petitioned for extraordinary writ, arguing that the doctrine of disentitlement does not provide any basis upon which to terminate his services, that such termination was not authorized at the six-month hearing under section 361.5, subdivision (a) and section 388, and that the juvenile court’s finding that the department had offered him reasonable reunification services is not supported by substantial evidence. We agree with the first two arguments, and accordingly we grant the petition without reaching the third.
BACKGROUND
Father has two daughters, I.J. and S.J.; and two sons, C.J. and M.J.
I.J.’s mother is J.M.; N.B. (mother N.B.) is the mother of the other three children. As of May 7, 2025, I.J., C.J., S.J., and M.J. were nine, eight, six, and five years old, respectively.
Initial Petition and Detention On May 9, 2025, the department filed a petition pursuant to section 300, subdivisions (a), (b), and (j) with respect to the children. The petition alleged that the children were at serious risk of physical harm because father was regularly giving them “higher medication doses than prescribed, despite being cautioned by medical staff of the possible dangers,” and that he refused to “schedule or allow medical testing to confirm the children’s diagnoses and the appropriate medication and dosing.” That same day, the department
1 Further undesignated statutory references are to the Welfare and Institutions Code.
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sought and was granted a protective custody warrant pursuant to section 340 with respect to all four children, who were taken into custody.
Jurisdiction, Disposition, And The First Evaluation Appointment On July 9, a contested jurisdiction hearing was held, at the conclusion of which the juvenile court found the jurisdictional allegations true and sustained the petition.
On July 22, the department filed a disposition report, attaching as “Exhibit H” an initial case plan, requiring father to participate in parenting education, domestic violence prevention plan, maintain visitation, and participate in a psychological evaluation.
On August 19, father and mother N.B. evidently moved to Sacramento. On September 10, a contested disposition hearing was held at which father was not present. At the beginning of the hearing, his attorney requested to be relieved as counsel, a request the court denied because, according to the minutes, there were no other attorneys “available to appoint” for him, and “disposition needs to move forward this day.” The court adopted the recommendations of the department, and also ordered that both parents submit to psychological evaluations “to be used for the purposes of tailoring services.”2
2 Father filed a notice of appeal from the juvenile court’s September 10 dispositional orders (A174873). In its respondent’s brief, filed February 19, the department indicated that it would stipulate to a conditional reversal in order to supplement and clarify the record regarding the Indian Child Welfare Act (ICWA). On March 12, we conditionally reversed and remanded for further ICWA findings. And on March 23, the juvenile court found that ICWA did not apply, and subsequently issued a written order to that effect on April 9.
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On October 20, a hearing was held on father’s motion to transfer the dependencies to Sacramento, a motion he evidently filed in propria persona despite being represented by an attorney. Father did not attend the hearing, and the juvenile court denied the motion without prejudice. At the hearing, counsel for the department also informed the court that a psychological examination of father had been scheduled to take place on October 24, and requested that father be “ordered to comply with” that evaluation. The juvenile court so ordered.
Father did not attend his October 24 appointment for a psychological evaluation.
On December 15, another hearing was held, including on separate motions under People v. Marsden (1970) 2 Cal.3d 118 filed by mother N.B. and father. The court granted both motions and relieved counsel for both parents, then indicated it did not have a new attorney to appoint for either. According to the minutes, there was then “discussion regarding the current order for the psychological evaluations,” and the court ordered both parents “to comply with the order and participate in the psychological evaluation.”3 The court set a hearing for the appointment of new counsel for January 12, 2026.
The Department’s Motion to Terminate Services On January 2, 2026, the department filed a “Motion to Terminate Family Reunification Services” based on the doctrine of disentitlement. The motion detailed the history regarding the evaluation, and asserted that
3 The department asserts at various points that the court ordered that the parents submit to psychological evaluations by a “date certain” of January 12, 2026. However, no transcript of the hearing is in the record, and the minutes do not reflect anything about a “date certain.”
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father had made several statements regarding his failure to attend the October 24 appointment that the “Department considers misleading, not credible, and contradictory.” In a section titled, “The Disentitlement Doctrine,” the motion cited language from In re C.C. (2003) 111 Cal.App.4th 76, 80 (C.C.), that “a juvenile court has the authority to deny services to a parent who refuses to comply with a valid court order for a psychological evaluation.” The motion argued that father had “been made aware of this Court’s orders to participate in a psychological evaluation[],” was “given multiple chances . . . and failed to do so,” that both parents “declined to reschedule appointments with their evaluators,” and that “lengthy email correspondence,” some of which was included in the motion’s nine exhibits, showed that they “had no intention of complying with the orders.” The motion concluded by requesting that the court “(1) allow the Department to provide the parents’ new attorneys with this Motion on 01/12/26, so that the Court may [¶] (2) terminate family reunification services to [father] and [mother] at the six-month permanency hearing (presently set for 02/02/26).”
At the January 12 hearing, the court appointed new counsel for both parents, and continued the six-month review hearing to March 2. At that hearing, there was a “discussion regarding the father not complying with the Court ordered” evaluation, and the court ordered that a new evaluation be scheduled. An appointment with Dr. Abbott was scheduled for April 30.
The Second Evaluation Appointment On April 22, counsel for the department emailed father’s counsel “to remind you and your client” that father had a psychological evaluation with Dr. Abbott scheduled for April 30. The email indicated “[y]our client repeatedly declined offers of transportation, so I assume CWS doesn’t need to make those arrangements,” noted father’s “questionable explanations for his
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failure to participate in [the] evaluation last October,” that further such explanations “will be considered by CWS to be noncompliance,” and that the department had “removed every barrier we can” to ensure father’s participation, closing by asking that counsel “advise us immediately if there are any barriers to your client’s participation on April 30th.”
At 4:37 p.m. on April 29, father emailed Dr. Abbott,4 the department, and its counsel, stating that “due to hardship—it’s impossible for my car to make it your [sic] office tomorrow for the evaluation,” because “[m]y cars [sic] head gaskets are over heating and my car can only make local drives around Sacramento,” and “I drove my car earlier today and it’s not safe to drive 4 hours to San Jose and 4 hours back.”
The next day, the department filed a “Supplemental Report Re:
Father’s Psychological Evaluation,” setting out some of the circumstances and attaching some of the emails just described, and arguing that father’s “behavior shows he never intended to participate in the psychological evaluation,” that there was “overwhelming evidence that he is willfully disobeying a lawful order of this Court,” and with citation to C.C., supra, 111 Cal.App.4th 76, that “parents can be denied reunification services when they fail to comply with a court order.” The motion asked that the juvenile court “grant its motion to terminate reunification services” and set a section 366.26 hearing with respect to the children.
4 Despite apparently being sent this email, Dr. Abbott emailed counsel for the department the next afternoon to indicate that father had “failed show for the scheduled appointment today . . . . I did not receive a telephone call or email from him.”
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The May 4 and May 18 Hearings A brief hearing was held on May 4, as the juvenile court put it, “the entirety of why this was on today, so the Court could know whether [father] had participated in a psychological evaluation.” Counsel for the department informed the court that he had not, and asked the court “to take up the initial motion to terminate [father’s] reunification services,” and the court set a hearing to do so for May 18.
Father was not present at the May 18 six-month review hearing, at which the court considered the department’s motion to terminate reunification services. In response to a question from counsel for the children and the court as to whether the “we’re doing this as a six-month hearing,” counsel for the department explained that “the motion to terminate reunification services is actually under the case law standard of standing in contempt of the court order as opposed to the six-month standard.”
After hearing brief argument from the parties, the juvenile court ruled as follows:
“THE COURT: So practically speaking, I’m kind of stuck here, right, because I’m sympathetic to [the children] wanting their father to get more services so they can be reunited, but this has been eight, nine months where [father] has sort of systematically refused to participate in any services. Yes, he did online classes, but—and that’s not—that’s good, but they’re specifically not the classes that have been recommended by the department. Part of the problem is is that [father] won’t do anything—I mean, I wish I could put it in more legal terms, but won’t do anything that he doesn’t want to do or come up with. He won’t—he won’t take any of the reasonable services that have been offered by the department.
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“And the Court has stressed repeatedly to [father] that the key here is the psychological evaluation. And also the key here, the classes he took about autism and domestic violence are good, but the key here is that there was a report and testimony from the hospital where the children were that he was overmedicating them and I guess the best word I’d be able to say is infantilizing them. And we’ve not really addressed any of that.
“And as I told him at one time, there’s various reasons this could be happening, and that is something psychological, could have been to get more money for IHSS. There’s a whole bunch of other reasons. But there was— well, I guess not a whole bunch. There’s a number of other reasons, but all of those come through a psychological evaluation. And his failure to participate repeatedly in both the psychological evaluation and any of the services offered or provided to the department—offered by the department is the key here in this entire case.
“And so I believe there’s clear and convincing evidence, whatever the standard, that the department has gone above and beyond to provide reasonable services, and [father] has repeatedly failed to comply with the court order, despite everything from explaining to him why it’s important, cajoling, you know, the judicial version of begging so we can go forward and expressing to him the consequences should that not happen as well as everyone working around every one of his issues, I guess is the best way of putting it, to get this to happen.
“So I’m going to grant the department’s request. I think either standard is met. But the failure to follow court orders is clear from not only his behavior but things he says in court—things he says in court and the fact that he’s not here in any capacity.
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“The Court puts great stock upon parents wanting to move forward and working for it and coming to court and doing that. It’s fine that he’s not here. I’m not blaming him for that. I understand there’s transportation issues, at least as he sees it. But I think we’ve done everything we can.”
The court found that father had failed to comply with its order to participate in a psychological evaluation and terminated his reunification services as to all four children. Because mother N.B.’s reunification services had already been terminated on March 23 at her request, the court set a hearing under section 366.26 with respect to her three children (C.J., S.J., and M.J.) for September 8, 2026.5 This writ petition followed.
DISCUSSION
The Law of Disentitlement and the Standard of Our Review The law of disentitlement is based on the principle that “[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 v. MacPherson (1939) 13 Cal.2d 271, 277; see Findleton v. Coyote Valley Band of Pomo Indians (2021) 69 Cal.App.5th 736, 756–757 (Findleton).) And thus, under so-called “[a]ppellate disentitlement,” 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.) This power is a “discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction.” (People v. Puluc-Sique (2010) 182
5 The court set a 12-month review hearing in I.J.’s case, which was bifurcated from the others.
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Cal.App.4th 894, 897; Findleton, supra, 69 Cal.App.5th at p. 756 [dismissal is “not a punishment for a party’s contemptuous acts” but an “equitable tool” to induce compliance with a presumptively valid order].)
“Courts do not lightly apply the disentitlement doctrine.” (Findleton, supra, 69 Cal.App.5th at p. 756.) In the juvenile dependency context, “the doctrine has been applied only in cases of the most egregious conduct . . . 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.” (M.C. v. Superior Court (2016) 3 Cal.App.5th 838, 844 (M.C.); see In re E.E. (2020) 49 Cal.App.5th 195, 211 (E.E.); In re E.M. (2012) 204 Cal.App.4th 467, 474; In re Baby Boy M. (2006) 141 Cal.App.4th 588, 597, fn. 6; In re A.G. (2012) 204 Cal.App.4th 1390, 1399; In re Z.K., supra, 201 Cal.App.4th at p. 63; In re Kamelia S. (2000) 82 Cal.App.4th 1224, 1229.)
The doctrine of disentitlement may also be applied by a lower court in the first instance—as the juvenile court did here. (See, e.g., In re Marriage of Cohen (2023) 89 Cal.App.5th 574, 582–583 [affirming dismissal of husband’s request to reduce spousal support payments for intentional failure to comply with support orders]; Adoption of Jacob C. (1994) 25 Cal.App.4th 617, 620, 623–624 [affirming order barring mother from participating through counsel in hearing on petition to terminate her parental rights as to one child because she absconded with a second child and remained in hiding].) And we review that decision for abuse of discretion. (See In re Marriage of Cohen, p. 583; Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 536.)
As to what is required to show such abuse, “it has been said that a trial court abuses its discretion only when its ruling ‘ “ ‘fall[s] “outside the bounds of reason,” ’ ” ’ ” or, “[m]ore colorfully, . . . only when the trial court’s ruling is arbitrary, whimsical, or capricious. [Citations.]” (People v. Jacobs (2007)
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156 Cal.App.4th 728, 736.) But such “ ‘pejorative boilerplate’ ” can be misleading, in part because “ ‘the “legal principles that govern the subject of discretionary action vary greatly with context. [Citation.] They are derived from the common law or statutes under which discretion is conferred.” ’ ” (Id. at p. 737.) And the “ ‘legal component of discretion was best explained long ago in Bailey v. Taaffe (1866) 29 Cal.422, 424: “The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . .” ’ ” (Jacobs, supra, 156 Cal.App.4th at pp. 737–738, quoting Concord Communities v. City of Concord (2001) 91 Cal.App.4th 1407, 1417; see People v. Seigler (2025) 116 Cal.App.5th 596, 609–610.)
The Application of Disentitlement Was Not Warranted As noted, father argues that the doctrine of disentitlement provides no basis for terminating his reunification services. And the department’s answer does not entirely make clear whether it is arguing that we should apply the doctrine of appellate disentitlement to deny father’s petition, or that we should do because the juvenile court’s application of the doctrine was not an abuse of discretion. The department asserts at various points that father is “disentitled to seek appellate relief,” and makes no mention of the standard of our review, although the answer’s conclusion asserts—despite the fact that we here consider a writ petition—that the juvenile court’s order “must be affirmed.”
One of the legal principles that guides our determination—and the juvenile court’s—as to whether to apply the doctrine is, as noted, that we do
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not do so lightly, and only in response to “egregious conduct . . . 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.” (M.C., supra, 3 Cal.App.5th at p. 844.)
Indeed, as one court observed, the doctrine has “typically” been applied “when the appellant has abducted the child whose care and custody is at issue.” (In re A.G., supra, 204 Cal.App.4th at p. 1399; see In re Kamelia S., supra, 82 Cal.App.4th at p. 1229 [father absconded with minor]; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1299; [grandparents denied placement and guardianship absconded with minor]; Adoption of Jacob C., supra, 25 Cal.App.4th at pp. 623–624 [mother abducted child].)
The department argues that application of disentitlement is warranted based on father’s “lengthy history of noncompliance with the order for a psychological evaluation,” his “hostil[ity]” to the court and counsel, including his own; and that his behavior “frustrated the ability” of the department “to provide tailored reunification services” as well as the children’s “right to timely permanency when parents are unlikely to reunify,” thus bringing the proceedings to a “grinding halt.”
Certainly father’s behavior is not to be condoned, and the frustration of the department and the juvenile court are quite understandable. And we take this opportunity to encourage him in the strongest possible terms to comply with the juvenile court’s order that he participate in a psychological evaluation (and indeed, with any and all of its orders), not only because such compliance is required by law, but also so that he may complete his case plan and be successfully reunited with his children.
That being said, we cannot agree that father’s behavior rises to the level of the “most egregious conduct” that would warrant the “ultimate
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sanction” of disentitlement. (In re Z.K., supra, 201 Cal.App.4th at p. 63; E.E., supra, 49 Cal.App.5th at p. 212.) Although his noncompliance with the court’s order was indeed “lengthy,” we must observe that it boiled down to his failure to show up for two appointments—appointments that were scheduled in San Jose, while he lived in Sacramento—each time on the basis of a dubious excuse. We cannot agree that this behavior “frustrate[d] the purpose of dependency law”—not, for these purposes, more so than the behavior of any parent who fails to comply with the requirements of their case plan or to successfully engage with the reunification process. (In re Z.K., supra, 201 Cal.App.4th at p. 63.) Nor did it “make it impossible for the court to protect the child[ren] or act in [their] best interests,” as the children were all the while in placements outside the home, under the supervision of both the department and the juvenile court. (Ibid.; M.C., supra, 3 Cal.App.5th at p. 844; cf. In re Kamelia S., supra, 82 Cal.App.4th at p. 1229 [disentitlement appropriate where parent absconded with and secluded child in violation of juvenile court orders because it is “virtually impossible for the court to extend its protection” to a minor who is unavailable at an unknown location].)
Furthermore, as the juvenile court acknowledged, father faced what he perceived to be transportation issues with appearing in person in court, participated in visitation with his children as offered by the department, and made at least some effort to comply with the various aspects of his case plan by taking online courses. (See M.C., supra, 3 Cal.App.5th at p. 844 [declining to apply the disentitlement doctrine where parent “made some, albeit minimal, attempt to comply with her case plan”].) While—as noted—we mean in no way to condone or endorse father’s conduct or attitude, should it continue, he faces the imminent and permanent loss of his parental rights with respect to his children through the normal statutory processes. Should
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this come to pass, it will be sanction enough for his misbehavior. (See, e.g., E.E., supra, 49 Cal.App.5th at p. 211 [“[a]ppellate disentitlement should not be used as a tool for punishing parents who do not fully cooperate with the social services agency . . . In our view, the dependency statutes provide appropriate and adequate consequences for such behavior”].)
In arguing to the contrary, the department relies on language from three cases—In re Kamelia S., supra, 82 Cal.App.4th 1224; M.C., supra, 3 Cal.App.5th 838; and C.C., supra, 111 Cal.App.4th 76—although its answer does not discuss their facts or holdings. Most on point is C.C., where the mother was alleged to be “mentally ill,” and at the detention hearing, the court “authorized” a psychological evaluation of her. (Id. at pp. 80–81.) At disposition—after the court took jurisdiction based on the mother’s mental health issues—the minor argued that the mother should be denied reunification services, “pending her participation in a psychological evaluation.” (Id. at p. 82.) The juvenile court concluded that due to the mother’s refusal to submit to a psychological evaluation—and the resulting lack of the two expert opinions needed to deny services based on a parent’s “mental disability” under section 361.5, subdivision (b)(2)—it was required to, and did, order that such services be provided. (C.C., p. 82.)
The minor appealed, and the Court of Appeal reversed, ultimately on the basis that the juvenile court had the power to order a psychological evaluation after taking jurisdiction but not before, and remanded for the court to decide whether to order such evaluation with an accurate understanding of its authority. (C.C., supra, 111 Cal.App.4th at p. 92.) In the course of doing so, the Court of Appeal opined that the mother should not, by her refusal to submit to a psychological evaluation, “be permitted to create a classic Catch 22 situation in which the court must extend her services
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because it cannot determine whether, in fact, she is actually entitled to them.” (Id. at p. 86, fn. omitted.) C.C. went on to opine—hypothetically— that should mother in the future refuse to comply with such an order, the doctrine of disentitlement would provide a basis upon which to deny her reunification services: “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.” (Id. at p. 85.)
In short, C.C.’s statement in this regard was pure dictum. And some 17 years later, in E.E., supra, 49 Cal.App.5th at pp. 210–211, the same court that had decided C.C. acknowledged as much: “[C.C.] did not involve appellate disentitlement, but more fundamentally, our discussion of the doctrine was only dicta. [Citation.] In addition, we question the appropriateness of C.C.’s broad pronouncement regarding the doctrine’s application. The Legislature has created a meticulous statutory scheme requiring the provision of reunification services unless specific statutorily mandated findings are made based on clear and convincing evidence. (§ 361.5, subds. (a) & (b).) We are not aware of any other published case holding that a parent may be denied reunification services based solely on the disentitlement doctrine, and we doubt the discretionary doctrine creates a sweeping power to deny reunification services in view of the Legislature’s clear preference for keeping families together at the disposition stage. (See In re Nolan W. [(2009)] 45 Cal.4th [1217,] 1228 [explaining ‘ “[f]amily preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are
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commenced” ’ and ‘ “[r]eunification services implement ‘the law’s strong preference for maintaining the family relationships if at all possible’ ” ’].)”
To begin with, C.C. is distinguishable, as there is no suggestion here that father is ineligible for reunification services under section 361.5, subdivision (b)(2), and thus no “Catch 22” presented by his refusal to submit to a psychological evaluation. In any event, we join E.E. in its doubt that the doctrine of disentitlement creates a “sweeping power” to terminate reunification services outside the “meticulous statutory scheme” for doing so. And some six years after the E.E. court indicated it was “not aware of any other published case holding that a parent may be denied reunification services based solely on the disentitlement doctrine,” the department fails to point us to any.
The other two cases cited by the department do not avail it. As noted, In re Kamelia S. applied the disentitlement doctrine to dismiss the appeal of a father who had abducted the child and gone into hiding. (Kamelia S., supra, 82 Cal.App.4th at pp. 1226, 1229.) In M.C.—as here—the juvenile court terminated mother’s reunification services at the six-month hearing, there after learning she had been sentenced to prison, and the Court of Appeal not only declined to apply the doctrine of disentitlement to dismiss her appeal, it held that “the six- and 12–month reunification periods in section 361.5, subdivision (a)(1), are mandatory and can only be cut short through the procedure set forth in section 388 or at the six-month review hearing if the court finds by clear and convincing evidence one of three circumstances [in section 361.5, subdivision (a)(2)] exists.” (M.C., supra, 3 Cal.App.5th at pp. 849, 844–845.)
In sum, to the extent the department asks that we deny father’s petition based on the doctrine of appellate disentitlement, we decline to do so.
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And for the same reasons, the juvenile court’s application of that doctrine was an abuse of its discretion.
The Department’s Attempt to Recharacterize Its Motion As a Section 388 Petition Fails Section 361.5, subdivision (a)(1), provides that where a detained child is three years of age or older, 12 months of reunification services “shall be provided” to the parent. (§ 361.5, subd. (a)(1)(A).) Subdivision (a)(2) provides the framework for terminating services prior to the end of the 12–month period. It states in relevant part: “Any motion to terminate court-ordered reunification services prior to the hearing set pursuant to subdivision (f) of Section 366.21 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).) It further states that such a motion “shall not be required” for the court to terminate services prior to the permanency hearing if, at the six- month review hearing, the court “finds by clear and convincing evidence one of the following: [¶] (A) That the child was removed initially under subdivision (g) of Section 300 and the whereabouts of the parent are still unknown. [¶] (B) That the parent has failed to contact and visit the child. [¶] (C) That the parent has been convicted of a felony indicating parental unfitness.” (§ 361.5, subd. (a)(2); see M.C., supra, 3 Cal.App.5th at pp. 842– 843.)
In response to father’s argument that the department did not comply with these statutory requirements because it never filed a petition pursuant to section 388, the department argues that its motion “compl[ied] with the requirements” of section 388, subdivision (c), going on to argue that
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substantial evidence supports the juvenile court’s finding that “reasonable services ha[d] been offered or provided.”
We need not consider whether the motion complied with the requirements of section 388, subdivision (c), because to do so requires us to construe the department’s motion as something that it plainly was not. The department’s brief, citing no authority, makes the point-blank assertion that “The motion was not filed on a JV-180 form, but that is not required.” In response, we must make two observations. The first is that California Rules of Court, rule 5.570(b) provides—in full: “A petition under Welfare and Institutions Code section 388 must be made on form Request to Change Court Order (form JV-180).” The second is that “[a]n attorney is an officer of the court and owes the court a duty of candor.” (Roche v. Hyde (2020) 51 Cal.App.5th 757, 817; see In re Reno (2012) 55 Cal.4th 428, 510; Bus. & Prof. Code, § 6068, subd. (d).) We shall charitably assume that the statement above by the department’s counsel—who also represented it before the juvenile court—reflects a concerning lack of familiarity only with the former, and not the latter.
In any event, the motion made not one reference to section 388, nor did it contain all the information required by California Rules of Court, rule 5.570(a). And although the department contends that father was served with the motion and provided notice of the hearing, thus satisfying the requirements of “substantive and procedural due process,” it offers no argument that the further requirements of rule 5.570(f)–(h) were complied with.
In short, the motion gave absolutely no notice that the department would seek to terminate father’s reunification services on the basis of section 388. At the hearing on the motion, the department’s counsel again confirmed
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that the motion was “actually under the case law standard of standing in contempt of the court order as opposed to the six-month standard.” Indeed, it would appear that the first indication that either the department or the juvenile court would rely on section 388 to terminate father’s reunification services—and thereby set in motion the termination of his parental rights— came halfway through the court’s oral ruling, when it stated that there was “clear and convincing evidence, whatever the standard,” in support of the department’s motion, and that “either standard is met.” We are not persuaded by the department’s after-the-fact attempt to recharacterize its motion as one brought under section 388. (See In re Marilyn H. (1993) 5 Cal.4th 295, 310 [section 388 “require[s] more than a last-minute oral” motion].) In addition to being contrary to the Rules of Court and to the law, the unfairness and surprise inherent in such approach is manifest. And our consideration of father’s petition need not proceed further.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing the juvenile court to vacate its May 18, 2026 orders terminating father’s reunification services and setting a section 366.26 hearing. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
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RICHMAN, J.
We concur.
STEWART, P.J.
MILLER, J.
(A176630N)