Grounds for Involuntary Termination of Parental Rights - California

Date: July 2021

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Welf. & Inst. Code §§ 361.5(b); 366.26(c)(1)

Reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, any of the following:

  • The whereabouts of the parent are unknown.
  • The parent is suffering from a mental disability that renders him or her incapable of utilizing those services.
  • The child or a sibling of the child had been removed from the custody of his or her parent as a result of an adjudication of dependency due to physical or sexual abuse, the child had been returned to the custody of the parent, and the child is being removed again due to additional physical or sexual abuse.
  • The parent has caused the death of another child through abuse or neglect.
  • The child was brought within the jurisdiction of the court under § 300(e) because of the parent's conduct.
  • The parent has inflicted severe sexual abuse or severe physical harm to the child, a sibling, or a half-sibling.
  • The child was conceived by means of the commission of an act of sexual abuse against a child that was committed by the parent.
  • The parent of the child willfully abandoned the child, and the court finds that the abandonment itself constituted a serious danger to the child.
  • The parent or other person having custody of an infant voluntarily surrendered physical custody of the child to a safe-surrender site pursuant to § 1255.7 of the Health and Safety Code.
  • The court ordered termination of reunification services for any siblings or half-siblings of the child because the parent failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent, and this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling from that parent.
  • The parental rights of a parent over any sibling or half-sibling of the child had been permanently severed, and the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from the parent.
  • The parent of the child has been convicted of a violent felony, including murder, voluntary manslaughter, or rape.
  • The parent of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment during a 3-year period immediately prior to the filing of the petition that brought that child to the court's attention or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan on at least two prior occasions, even though the programs identified were available and accessible.
  • The parent of the child has advised the court that he or she is not interested in receiving family reunification services or having the child returned to or placed in his or her custody.
  • The parent has on one or more occasions willfully abducted the child or child's sibling or half-sibling from his or her placement, refused to disclose the child's whereabouts, and refused to return physical custody of the child to his or her placement.
  • The parent knowingly participated in, or permitted, the sexual exploitation of the child. This shall not include instances in which the parent or guardian demonstrated by a preponderance of the evidence that he or she was coerced into permitting, or participating in, the sexual exploitation of the child.

Any of the following circumstances shall constitute a sufficient basis for termination of parental rights:

  • A court finds that reunification services shall not be offered.
  • The whereabouts of a parent have been unknown for 6 months.
  • The parent has failed to visit or contact the child for 6 months.
  • The parent has been convicted of a felony indicating parental unfitness.
  • The court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services.

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Welf. & Inst. Code § 366.26(c)(1), (e)(2)

Parental rights shall not be terminated if any of the following apply:

  • The child is living with a relative who is unable or unwilling to adopt the child.
  • The court finds a compelling reason for determining that termination would be detrimental to the child due to any the following:
    • The parents have maintained regular visitation and contact with the child.
    • A child who is age 12 or older objects to the termination.
    • The child is placed in a residential treatment facility and adoption is unlikely.
    • The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child.
    • There would be substantial interference with a child's sibling relationship.
    • The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interests of the child, including, but not limited to, the following:
      • Termination would substantially interfere with the child's connection to his or her Tribal community or Tribal membership rights.
      • The child's Tribe has identified guardianship, foster care with a fit and willing relative, Tribal customary adoption, or another planned permanent living arrangement for the child.
      • The child is a nonminor dependent, and the child and the child's Tribe have identified Tribal customary adoption for the child.

The court shall not terminate parental rights if the court has found that reasonable efforts were not made or were not offered. In the case of an Indian child, the following apply:

  • The court has found that active efforts were not made.
  • The court has not found, beyond a reasonable doubt, including testimony of one or more 'qualified expert witnesses,' that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
  • The court has ordered Tribal customary adoption.

Circumstances Allowing Reinstatement of Parental Rights

Citation: Welf. & Inst. Code § 366.26(e)(3), (i)(3)

If a child who is the subject of a Tribal customary adoption has a developmental disability or mental illness as a result of conditions existing before the adoption to the extent that the child is considered unadoptable, and the adoptive parent(s) had no prior knowledge of the condition, a petition setting forth those facts may be filed by the adoptive parent(s) with the juvenile court that granted the adoption petition. If these facts are proved to the satisfaction of the juvenile court, it may make an order setting aside the adoption order. The set-aside petition shall be filed within 5 years of the issuance of the adoption order. Whenever a final decree of Tribal customary adoption has been vacated or set aside, the biological parent(s) of the child may petition for return of custody. The disposition of the child after the court has entered an order to vacate an adoption shall include consultation with the child's Tribe.

A child who has not been adopted at least 3 years after parental rights were terminated, and the court has determined that adoption is no longer the permanency plan, may petition the juvenile court to reinstate parental rights. The child may file the petition prior to the expiration of this 3-year period if the Department of Social Services or adoption agency that has custody of the child and the child stipulate that the child is no longer likely to be adopted. A child older than age 12 shall sign the petition unless there is good cause as to why the child could not do so. The court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child's best interests. If the court reinstates parental rights over a child who is younger than age 12 and for whom the new permanency plan will not be reunification with a parent, the court shall specify why it is in the child's best interests to reinstate parental rights.