Parental Rights May Not Be Terminated Due to ‘Adoptability’

Tuesday, April 28, 2026

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California Supreme Court:

Parental Rights May Not Be Terminated Due to ‘Adoptability’

Opinion Says Error to Fail to Demand Further Findings Before Severing Relationship at Permanency Hearing Held After Reunification Efforts Were Unsuccessful as to One Child, Counsel Was Ineffective in Not Challenging Ruling

By Kimber Cooley, associate editor

The California Supreme Court held yesterday that a dependency court may not terminate parental rights, at a permanency hearing held after the children at issue have been declared wards of the court, based solely on a finding that the minors are likely to be adopted.

Saying that the statutory scheme requires additional findings, the high court declared, in a unanimous opinion written by Justice Goodwin H. Liu, that a Juvenile Court judge erred in severing the parent-child relationship without addressing certain factors listed in the governing law and that it amounted to ineffective assistance of counsel for the mother’s attorney to fail to challenge the ruling.

At issue is Welfare and Institutions Code §366.26, which “applies to children who are adjudged dependent children” and are the subject of a so-called “permanency hearing” at which a judge is to decide whether to terminate parental rights, making the child available for adoption, or select another permanent placement plan like guardianship or long-term foster care. Such hearings are held only after reunification services have been found to be ineffective.

Likelihood of Adoption

Subdivision (c)(1) provides:

“If the court determines,…that it is likely the child will be adopted, the court shall terminate parental rights….A finding…that reunification services shall not be offered,…that the whereabouts of a parent have been unknown [or the parent has failed to contact the child] for six months…, or that the parent has been convicted of a felony indicating parental unfitness, or,…that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination….”

The mother lost custody of her four-month-old infant, identified only as “Z.G.,” after the child was found to have methamphetamine in her system in September 2020. Reunification services were ordered and, by April 2021, the San Bernardino County Children and Family Services recommended that the minor be returned to her parents’ care after both parties engaged in classes and tested negative for illegal substances.

After a second child, referred to as “A.G.,” was born to the couple a few months later, the department sought to declare the new baby a dependent and filed new papers relating to Z.G., citing allegations of renewed drug activity by the father, for whom parental rights were later terminated. The children were allowed to remain in their mother’s care.

Removal From Care

However, by March 2023, the mother had allegedly stopped showing up for drug testing and had purportedly lost her housing, and the children were removed from her care. That May, San Bernardino Superior Court Judge
Lynn Poncin terminated reunification efforts for both children, even though the 18 months of services required by statute had yet to run as to A.G., and set the matter for a permanency planning hearing.

Counsel for the mother asked that plans for reunification continue, but he did not provide any reasons in support of the request and failed to challenge the department’s assurances that the statutory period for services had expired. The lawyer also declined to pursue writ relief after the mother indicated an intent to contest the ruling.

A.G. and Z.G. were placed with relatives in late June 2023, and those guardians filed a petition for adoption. The following April, the court terminated parental rights after deciding that the minors were likely to be adopted.

On appeal, Div. Two of the Fourth District affirmed, rejecting the mother’s assertion that the court was required to find that services to A.G. had either been bypassed by law or terminated, and summarily dismissed her habeas corpus petition challenging certain other orders in the dependency proceedings based on claims of ineffective counsel.

The high court granted review over the direct appeal and the habeas petition, opting to hear both in consolidated proceedings.

Termination of Rights

Addressing “the juvenile court’s judgment terminating Mother’s parental rights” as to both children, Liu noted:

“Mother contends that at a section 366.26 hearing, a juvenile court may terminate parental rights only when it finds both that the dependent child is likely to be adopted and that there is a sufficient basis for terminating parental rights, as defined by statute. The Department disagrees, contending that if the juvenile court finds that adoption is likely, it is ‘required to terminate parental rights’ unless a statutorily defined exception applies.”

Liu acknowledged that subdivision (c)(1) declares that “the court shall terminate parental rights” upon a finding that “it is likely the child will be adopted,” but reasoned:

“This argument does not pass muster when reading subdivision (c)(1) in its entirety. For one thing, while the Department is correct that the first sentence appears to make a likelihood-of-adoption finding a sufficient condition for termination, the Department concedes that the exceptions qualify the directive in the first sentence….Moreover, under the Department’s reading, it is not clear what purpose the additional findings serve.”

Purpose of Scheme

Pointing out that such a reading is at odds with the purpose behind the dependency scheme, which was adopted with family preservation in mind, Liu remarked:

“We decline to interpret the statute in a way that permits the termination of parental rights absent reunification services.”

Rejecting the view that amendments to the statute, which delete conditional language connecting the likelihood-of-adoption finding to the additional requirements, evince a legislative intent to make a finding as to adoptability determinative at permanency hearings, Liu expressed “doubt[s]” that the changes were so motivated. He declared:

“In sum, we hold that a juvenile court at a section 366.26 hearing may terminate parental rights only when it makes both a likelihood-of-adoption determination and one of the additional findings referenced in section 366.26, subdivision (c)(1).”

Noting that the section lists exceptions to the mandate for termination of parental rights if the child “is living with a relative who is unable or unwilling to adopt…but who is willing and capable” of providing care or “[t]he court finds a compelling reason for determining that termination would be detrimental” due to listed circumstances, including the continuation of a beneficial parental or sibling relationship, the justice added:

“And if the juvenile court finds one of the exceptions in subdivision (c)(1) applicable, it may not terminate parental rights even when it has found a likelihood of adoption and one of the additional findings.”

As to the department’s contention that any error is harmless because Welfare and Institutions Code §361.5(b)(10)(A) specifies that a court may decline to order reunification services when a parent has failed to reunify with the child’s sibling after services were provided, Liu responded:

“We disagree. Before the disposition hearing, the Department represented that…Mother was ineligible for continued services, and the court confirmed its understanding at the hearing by asking, ‘Isn’t the mother out of time statutorily for services to be provided?’ The court made no comments about Mother’s efforts to treat the problems that led to Z.G.’s removal. The record contains no indication, and the Department has not cited any, that the juvenile court terminated reunification services for any reason other than a misunderstanding of Mother’s situation with respect to A.G.”

Saying that “[n]or do we think there is substantial evidence in the record to support a bypass of reunification services,” he pointed to the mother’s earlier success in regaining custody and commented that “we reject the ‘selective hindsight’ of focusing exclusively” on the months “leading up to the dispositional hearing.”

He continued:

“Our holding is sufficient to reverse the Court of Appeal’s judgment affirming the juvenile court’s termination of Mother’s parental rights over A.G. However, Mother argues that the order terminating her parental rights as to Z.G. should also be reversed because there would be ‘substantial interference’ with A.G.’s ‘sibling relationship’ to Z.G.”

Agreeing with that principle, he declared that “[t]he record provides no reason to doubt that ‘ongoing contact’ between the siblings would be in Z.G.’s ‘best interest.’ ”

The case is In re Z.G., 2026 S.O.S. 1125.