Juvenile court must find more than adoptability. . .

In reversal, the California Supreme Court held that a juvenile court may not terminate parental rights under W&I C §366.26(c)(1) based solely on a finding that the child is likely to be adopted; instead, the court must also find one of the additional findings set forth in the statute.

In September 2020, the San Bernardino County Children and Family Services (the Department) filed a dependency action alleging Z.G., a four-month-old infant, was at risk of harm due to mother's substance abuse and father's substance abuse and domestic violence. In October 2020, the juvenile court removed Z.G. from parents' custody and ordered reunification services.

In April 2021, the Department recommended Z.G.'s return to parents' custody, noting mother planned to cut contact with relatives involved in substance abuse. Both parents had completed unsupervised visitation for several months, taken anger management and parenting classes, received therapeutic services, engaged in individual counseling, attended Al-Anon group meetings, and tested negative for drugs. As part of its recommendation, the Department noted the concerns that led to placement "'do not currently exist.'" The juvenile court likewise observed parents had made substantial progress.

However, in July 2021, the Department filed a second dependency action after parents had a second child, A.G., earlier that month. Although the Department stated mother had met the children's needs and had negative drug tests, it raised concerns about father's domestic violence and substance abuse. In August 2021, the juvenile court removed both children from father but ordered they remain in mother’s custody.

In 2022, the Department recommended dismissing the cases, noting mother had tested clean for the past two years and had otherwise completed her case plan. However, in March 2023, the Department filed supplemental petitions to both children. The Department stated mother was no longer cooperating with her case plan or testing for drugs, had lost her housing, and had lost contact with the Department. By the time of the disposition hearing on the supplemental petitions in May 2023, mother had not yet received reunification services as to A.G. Before terminating reunification services, the juvenile court asked, "'Isn't the mother out of time statutorily for services to be provided?'" The Department answered in the affirmative. Mother’s counsel did not challenge the Department’s assertions.

Two weeks after the hearing, mother filed a notice of intent to file a writ petition challenging the results of the hearing. However, mother's counsel failed to prosecute the challenge after concluding there were no appealable issues. In June 2023, the children were placed with relatives who eventually decided to seek adoption.

At a permanency planning hearing in April 2024, the juvenile court concluded the children were likely to be adopted and terminated mother's parental rights as to both children. Mother appealed and her appellate counsel filed a petition for a writ of habeas corpus.

The Court of Appeal affirmed the termination of mother's parental rights after concluding the juvenile court was not required to find that mother received reunification services or that bypass of those services was appropriate. The Court of Appeal further concluded it lacked jurisdiction because mother appealed only the order terminating parental rights rather than the order removing the children and setting the permanency planning hearing. The Court also affirmed the juvenile court's conclusion that the beneficial parental relationship exception did not apply and summarily denied mother's habeas corpus petition. Mother filed a petition for review, which the California Supreme Court granted.

Adoptability is not enough. . .

The California Supreme Court first considered whether a juvenile court may terminate parental rights at a W&I C §366.26 hearing based solely on a finding that the child is likely to be adopted. The Department argued that once adoptability is found, the court is required to terminate parental rights unless a statutory exception applies. Mother argued that the court must find both adoptability and a separate statutory basis for termination. The high court agreed with mother.

At the relevant time, W&I C §366.26(c)(1) provided that if the court determines by clear and convincing evidence that the child is likely to be adopted, the court must terminate parental rights and order the child placed for adoption. The statute further identifies additional findings that, together with adoptability and absent an applicable exception, provide the necessary statutory predicate for termination. Those include findings that reunification services were bypassed under W&I C §361.5(b), that the parent's whereabouts have been unknown for six months, that the parent failed to visit or contact the child for six months, that the parent has been convicted of a felony indicating parental unfitness, or that the court continued the child's removal and terminated reunification services under W&I C §§366.21 or 366.22.

The high court held that the statute must be read as a whole. Although the first sentence, viewed in isolation, appears to make adoptability sufficient, the statute also contains exceptions that indisputably preclude termination even when a child is adoptable. The Department’s interpretation also failed to give meaningful effect to the additional findings listed in W&I C §366.26(c)(1).

The Supreme Court further emphasized that reunification services are central to California's dependency scheme. Those services implement the law's strong preference for preserving family relationships where possible. The dependency system balances a parent's interest in due process and fundamental fairness with the child's interest in stability and permanency. Reunification services are one of the significant safeguards built into that system.

The court therefore declined to interpret W&I C §366.26(c)(1) to permit termination of parental rights when a parent received neither reunification services nor a valid bypass finding.

The Supreme Court also rejected the Department’s reliance on legislative history. The Department argued that amendments to W&I C §366.26 after In re DeLonnie S. (1992) 9 Cal.App.4th 1109, 12 Cal.Rptr.2d 43, eliminated the requirement that the court make both an adoptability finding and one of the additional statutory findings. The Supreme Court disagreed, concluding that the relevant 1998 and 2007 amendments did not alter the relationship between the adoptability finding and the additional findings. Rather, those amendments addressed other issues, including clarification that a child need not already be placed in a preadoptive home to be found adoptable and creation of an exception for certain relative guardianships.

Accordingly, the court held that a juvenile court may terminate parental rights at a W&I C §366.26 hearing only when it makes both a likelihood of adoption finding and one of the additional findings referenced in W&I C §366.26(c)(1). Even then, the court may not terminate parental rights if a statutory exception applies.

Error not harmless. . .

The Department argued that any error was harmless because reunification services as to A.G. could have been bypassed under W&I C §361.5(b)(10)(A). That provision permits bypass when a parent failed to reunify with a sibling or half sibling after receiving reunification services and has not subsequently made a reasonable effort to treat the problems that led to the sibling's removal.

The Supreme Court rejected the harmless error argument, noting the juvenile court did not purport to bypass services based on mother's failure to make reasonable efforts. Instead, the record showed that the court and the Department operated under a mistaken understanding that mother was statutorily out of time for services as to A.G. The juvenile court made no comments suggesting that mother had failed to make reasonable efforts to address the problems that led to Z.G.'s removal.

The Supreme Court also concluded that the record did not contain substantial evidence that mother failed to make reasonable efforts. The problems that initially led to Z.G.'s removal were substance abuse in the family and mother and father leaving Z.G. with untrustworthy caretakers. The record showed that mother cooperated with services, made substantial progress, tested negative repeatedly, completed counseling, participated in domestic violence classes, attended Al-Anon meetings, completed her case plan, ended her relationship with father, and safely cared for both children for more than 18 months.

Although mother's efforts in the months before the March 2023 supplemental petitions may have been inadequate standing alone, the court refused to use selective hindsight. The relevant question was whether, considering all of mother's conduct over the entire period, she made reasonable efforts to address the problems that led to Z.G.'s removal. The court further noted that even assuming mother had relapsed, relapse did not necessarily show that she failed to make reasonable efforts. The issue was not whether mother cured any substance abuse problem, but whether she made reasonable efforts to treat it.

Viewed as a whole, the record did not support a finding, under a clear and convincing standard, that mother failed to make reasonable efforts.

Sibling relationship required reversal as to both children. . .

The Supreme Court's statutory holding required reversal of the order terminating mother's parental rights as to A.G. Mother argued that the order terminating her parental rights as to Z.G. should also be reversed because termination as to Z.G. would substantially interfere with the sibling relationship between Z.G. and A.G. The Department did not contest that argument.

The high court agreed. A.G. and Z.G. had lived together for the entirety of their young lives. The record provided no reason to doubt that ongoing contact between the siblings would be in Z.G.'s best interest. It was therefore at least reasonably probable that the juvenile court would have found a compelling reason to determine that termination of parental rights as to Z.G. would be detrimental because of substantial interference with the sibling relationship. The court reversed the termination of parental rights as to both children.

Ineffective assistance. . .

The Supreme Court then addressed mother's habeas petition. Mother argued that her trial counsel was ineffective in several respects, including by failing to object when the juvenile court terminated services as to A.G. and set the W&I C §366.26 hearing, and by failing to prosecute writ review of that order.

The Department agreed that counsel's failure to raise mother's entitlement to reunification services as to A.G. was deficient performance, characterizing the omission as a clear oversight. The Supreme Court agreed. It also rejected the Department's argument that mother suffered no prejudice because services would have been bypassed. As already explained, the record did not support that conclusion.

The court further held that mother acted with sufficient diligence. Mother promptly filed a notice of intent to file a writ petition after the disposition order. Her attorney, however, concluded there were no issues and did not file a brief. The Supreme Court rejected the suggestion that mother should have insisted that her attorney prosecute the writ anyway, noting the attorney, not the client, is responsible for analyzing the client's legal position and identifying issues to pursue.

The court also rejected the argument that mother should have filed a habeas petition immediately after the writ default. Mother was entitled to rely on appointed counsel. Moreover, she filed her habeas petition concurrently with a timely appeal from the order terminating parental rights. Because the termination order was not final while the appeal was pending, the concerns about finality discussed in In re A.R. (2021) 11 Cal.5th 234, 276 Cal.Rptr.3d 761, did not bar relief.

The Supreme Court also rejected the Department’s jurisdictional argument. Although challenges to an order setting a W&I C §366.26 hearing ordinarily must be made by timely extraordinary writ, counsel’s deficient performance effectively denied mother the opportunity to pursue writ review in the first place. Habeas relief was therefore available to protect mother’s statutory right to competent representation.

The Supreme Court held that mother received ineffective assistance when counsel failed to assert her statutory right to reunification services as to A.G. at disposition and failed to seek writ review of the order setting the permanency planning hearing.

Accordingly, the Supreme Court reversed the Court of Appeal's judgment and remanded with directions to reverse the juvenile court's orders terminating parental rights as to Z.G. and A.G. As to mother's habeas petition, the Supreme Court vacated the portions of the juvenile court's May 2023 order terminating mother's reunification services as to A.G. and setting a W&I C §366.26 hearing as to A.G. Because services as to A.G. likely would have affected Z.G.'s trajectory given the sibling relationship, the court also vacated the order setting the W&I C §366.26 hearing as to Z.G. The court directed the juvenile court to hold a new disposition hearing and determine an appropriate remedy, giving due consideration to mother’s entitlement to reunification services with A.G. and to the fact that the siblings had lived together for their entire lives.