The parental rights of either or both parents can be terminated should a court determine that it is in the best interests of the child to do so. Should both the parental rights of both parents be terminated, the parents will lose their right to raise their children and the children will be removed from the family home. This is most often done when a court determines that there is a risk of harm by one or both parents, or there is an inability of one or both parents to provide for a child’s basic needs.
Determining Parental Rights
The most common statutory grounds for determining parental unfitness include:
- Severe or chronic abuse or neglect;
- Sexual abuse;
- Abuse or neglect of other children in the household;
- Abandonment of the child;
- Long-term mental illness or deficiency of the parent(s);
- Long-term alcohol- or drug-induced incapacity of the
- Failure to support or maintain contact with the child; or,
- Involuntary termination of the rights of the parent to another
Termination of Both Parents Parental Rights
Termination of both parents’ parental rights should occur in one court proceeding. Cal Rules of Ct 5.725(a)(2). The court may not terminate the parental rights of only one parent under Welfare & Institutional Code §366.26 unless that parent is the only surviving parent, the rights of the other parent have been terminated, or the other parent has relinquished custody of the child to the welfare department. Cal Rules of Ct 5.708(l), 5.725(a)(2). See In re Mary G. (2007) 151 CA4th 184, 208; In re Caitlin B. (2000) 78 CA4th 1190, 1194.
The termination of parental rights includes the termination of the rights of all parents—whether natural, presumed, biological, alleged, or unknown. This is necessary in order to free the child for adoption under Cal Rules of Ct 5.725(g). In re Jerred H. (2004) 121 CA4th 793 (construing former Cal Rules of Ct 1463(g), now Cal Rules of Ct 5.725(g)).
Termination of One Parent’s Parental Rights Terminates the Other Parent’s Rights
A sustained Welfare & Institutional Code §300 petition with respect to each parent is not a required precondition to termination of the rights of both parents. In re A.S. (2009) 180 CA4th 351, 357 (no due process violation when court terminated biological father’s parental rights without making initial finding that his acts or omissions brought children within descriptions of Welfare & Institutional Code §300). The court found support for this proposition in In re P.A. (2007) 155 CA4th 1197, 1212, which held that a child may be declared a dependent if the actions of either parent bring the child within the statutory definitions of dependency. Compare In re A.S. with In re Frank R. (2011) 192 CA4th 532, 538 (when juvenile court asked to make required finding of detriment by clear and convincing evidence in order to remove children from parent’s custody, it made no such finding as to father, because he was noncustodial and did not request custody), L.Z. v Superior Court (2010) 188 CA4th 1285 (state may not terminate parent’s right until it proves parental unfitness), and In re Gladys L. (2006) 141 CA4th 845, 848 (father’s due process rights were violated when trial court terminated his parental rights without finding of parental unfitness). See also In re T.G. (2013) 215 CA4th 1, summarizing Frank R., L.Z., and Gladys L. as standing for the proposition that a court “may not terminate a nonoffending, noncustodial mother’s or presumed father’s parental rights without finding, by clear and convincing evidence, that awarding custody to the parent would be detrimental” and finding that an order terminating a presumed father’s parental rights was constitutionally invalid because the juvenile court never made a finding that appellant was an unfit parent, even though he was not found to be a presumed parent until the case was in the permanency planning stages. See also In re G.P. (2014) 227 CA4th 1180, 1192 (failure to make detriment finding before terminating father’s rights was invited error because father’s counsel misled court by arguing such a finding was not appropriate).
Reinstatement of Parental Rights
A related issue is whether the reinstatement of one parent’s parental rights requires reinstatement of the other parent’s rights. There are conflicting cases on the issue.
In In re DeJohn B. (2000) 84 CA4th 100, the court held that, after reversal of a judgment terminating the mother’s parental rights, it was in the children’s best interests to reinstate the father’s parental rights because the children were no longer available for adoption and there was no legitimate purpose in leaving them without a father, depriving them of legal benefits or entitlements that might be available through the paternal side of the family. Reflecting the reasoning in DeJohn B., the court in In re A.L. (2010) 190 CA4th 75 held that the juvenile court erred by finding that a father’s parental rights were not reinstated by its ruling reversing the denial of the mother’s Welfare & Institutional Code §388 petition, which vacated the Welfare & Institutional Code §366.26 hearing and the orders terminating parental rights and reinstated the mother’s parental rights. The court of appeal relied in part on Cal Rules of Ct 5.725(a) and (g), which prevent a court from terminating the parental rights of only one parent absent a specified exception.
In Los Angeles County Dep’t of Children & Family Servs. v Superior Court (Rebecca H.) (2000) 83 CA4th 947, however, the court held that the reinstatement of one parent’s rights does not require reinstatement of the other’s rights. Under former Cal Rules of Ct 1463 (now see Cal Rules of Ct 5.725), the court reasoned, the rights of one parent alone may be terminated if the rights of the other have already been terminated. Thus, because the mother’s rights had been terminated, reinstatement of the father’s rights had no effect on her. See also In re Caitlin B., supra (mother lacked standing to challenge termination of parental rights based on lack of notice to father).
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