Governing Statute and Case Law for Termination of Parental Rights

Welfare and Institutions Code section 366.26 is ‘the exclusive vehicle for terminating parental rights when a child has been declared a dependent of the juvenile court.’ (Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 334 citing County of Ventura v. Gonzales (2001) 88 Cal.App.4th 1120, 1124) An order terminating parental rights terminates the parental duty of support, and it also terminates all rights of the parent in and to the child as well as the rights of the child in and to the parent.” (Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 335.)

Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 335, is a case in which the court found a child lacked standing to bring a wrongful death action on behalf of her biological mother. The court concluded that the order terminating her biological mother’s parental rights pursuant to Welfare and Institutions Code section 366.26 had ended the parent-child relationship. (Id.)

In speaking to the effect of termination, the court in Fraizer noted, “the parents were parents no longer... [a]s a result of the order terminating parental rights, the court permanently terminated all parental rights and obligations of parents to child, and all rights and obligations of the child to the parents.” (Fraizer v. Velkura (2001) 91 Cal.App.4th 942, 946) “‘The proceedings to declare a child free from parental control . . . contemplate . . . the severance of the relationship between the child and its parent or parents.’” (Fraizer v. Velkura (2001) 91 Cal.App.4th 942, 946 quoting In re Zimmerman (1962) 206 Cal.App.2d 835, 843.)

Constitutional Rights of Parents

To terminate parental rights the State must conduct a hearing under a constitutionally proper standard. (Santosky v. Kramer (1982) 455 U.S. 745, 770.)

“Parents and children have a well-elaborated constitutional right to live together without governmental interference.” (Rogers, infra, 487 F.3d 1288, 1294 citing Wallis v. Spencer (2000) 202 F.3d 1126, 1136.) “The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” (Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs.(2001) 237 F.3d 1101, 1107.) “

Officials violate this right if they remove a child from the home absent ‘information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’” ( Id. quoting Wallis, 202 F.3d at 1138).) “The Fourth Amendment also protects children from removal from their homes absent such a showing. (Doe v. Lebbos (2003) 348 F.3d 820, 827 n. 9.) “Officials, including social workers, who remove a child from its home without a warrant must have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant.” (Rogers v. County of San Joaquin (2007) 487 F.3d 1288, 1294.)