In re Z.G.

IN THE SUPREME COURT OF
           CALIFORNIA

                 In re Z.G. et al.,
   Persons Coming Under the Juvenile Court Law.



SAN BERNARDINO COUNTY CHILDREN AND FAMILY
                  SERVICES,
           Plaintiff and Respondent,
                       v.
                      A.G.,
           Defendant and Appellant.
                     S289430

           In re A.G. on Habeas Corpus.
                      S289441

      Fourth Appellate District, Division Two
               E083710, E084563

      San Bernardino County Superior Court
               J286808, J289966



                  April 27, 2026
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Evans, and Baltodano* concurred.




*
      Associate Justice of the Court of Appeal, Second Appellate
District, Division Six, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                            In re Z.G.*
                             S289430


                  Opinion of the Court by Liu, J.


      In these consolidated cases, the juvenile court terminated
a mother’s parental rights as to her two children after finding
they were likely to be adopted. It is undisputed that the mother
received statutorily guaranteed reunification services as to one
child and that she did not receive reunification services as to her
other child. Her trial counsel did not assert her statutory right
to such services at the disposition hearing where the juvenile
court terminated services and set a permanency planning
hearing. After the mother filed a notice of intent to challenge
that outcome, her trial counsel did not prosecute the challenge.
      We hold that a juvenile court may not terminate parental
rights merely by finding a likelihood of adoption. Further, we
conclude that the trial counsel here provided ineffective
assistance of counsel by not asserting the mother’s statutory
right to services as to one of her children and by failing to
challenge the termination of services and setting of the
permanency planning hearing. We reverse and remand.
                                 I.
      This case comes to us from dependency proceedings
involving two children. “Dependency proceedings span up to
four stages:    jurisdiction, disposition, reunification, and
permanency. [Citations.] At the jurisdictional stage, the


*
    Consolidated with In re A.G. (S289441).


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                    Opinion of the Court by Liu, J.


juvenile court determines whether to declare a child a
dependent of the court because the child is suffering, or at risk
of suffering, significant harm. [Citation.] At the dispositional
stage, the court decides if the child can be returned to, or must
be removed from, a parent’s custody. [Citations.]” (Michael G.
v. Superior Court (2023) 14 Cal.5th 609, 624, fn. omitted
(Michael G.).)
      The final two stages, reunification and permanency, are at
issue here. “During the reunification stage, qualifying parents
are offered services to address the causes that led to the loss of
custody.” (Michael G., supra, 14 Cal.5th at p. 624.) These
reunification services “ ‘ “implement ‘the law’s strong preference
for maintaining the family relationships if at all possible.’ ” ’ ”
(Ibid.) “When the child is removed from the home, the court first
attempts, for a specified period of time, to reunify the family.”
(In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) If
reunification services are ineffectual, then the court moves to
the next stage by “ ‘terminat[ing] reunification efforts and
set[ting] the matter for a hearing pursuant to [Welfare and
Institutions Code] section 366.26.’ ” (Ibid.; all undesignated
statutory references are to the Welfare and Institutions Code.)
     At the permanency stage, the court “either terminates
parental rights and places the child up for adoption or it selects
another permanent plan, such as placement with a guardian or
in long-term foster care.” (Michael G., supra, 14 Cal.5th at
p. 624.) The permanency planning hearing, sometimes called a
section 366.26 hearing, is “designed to select and implement a
permanent plan for the child.” (In re Marilyn H. (1993)
5 Cal.4th 295, 304 (Marilyn H.); see Celine R., supra, 31 Cal.4th
at pp. 52–53.) At this final stage of the dependency process, “the
question before the court is decidedly not whether the parent

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                   Opinion of the Court by Liu, J.


may resume custody of the child.” (In re Caden C. (2021)
11 Cal.5th 614, 630 (Caden C.).) Ordinarily, when the hearing
is set, “reunification services have been terminated, and the
assumption is that the problems that led to the court taking
jurisdiction have not been resolved.” (Ibid.)
      This case began in late September 2020, when San
Bernardino County Children and Family Services (the
Department) received a referral that a four-month-old infant,
Z.G., was in an emergency room and tested positive for
methamphetamine. A few days later, the Department filed a
dependency petition against Z.G.’s mother (Mother) alleging
that Z.G. was at risk of harm because Mother abused illegal
substances and left Z.G. with a caretaker who also abused
substances. (See § 300, subd. (b).) The petition also alleged that
there was domestic violence by Mother and Z.G.’s father
(Father), that Father did not protect Z.G. despite Mother’s
substance abuse, that Father abused substances, and that
Father’s whereabouts were unknown. (The Department later
concluded the allegations of domestic violence and Father’s
purportedly unknown whereabouts were unsupported by
evidence.)
      In October, the juvenile court ordered Z.G. detained
outside her parents’ custody. As the disposition hearing
approached, the Department recommended formal removal with
reunification services. The Department suggested that the
parents’ substance abuse and history of substance abuse in their
families impaired their decisionmaking, and that the parents
had left Z.G. with unfit caretakers. The Department’s proposed
case plan urged Mother and Father to access resources and meet
Z.G.’s needs, to arrange appropriate childcare when they were
away from home, to develop positive support systems, and to

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                    Opinion of the Court by Liu, J.


stay clean of illegal substances. The juvenile court agreed and
removed Z.G. while observing that both parents had “cooperated
with initial services ordered at detention” and had “made
progress in alleviating the problems.” The court ordered
reunification services.
      Some months later, it appeared the situation had
improved. In April 2021, the Department recommended Z.G.’s
return to Mother and Father’s custody, noting that Mother
planned to cut contact with relatives given their continued
substance abuse. Unsupervised visitation had been ongoing for
several months, and both parents had engaged with their case
plans: They took anger management and parenting classes,
received therapeutic services, engaged in individual counseling,
attended Al-Anon group meetings, and tested negative for
drugs. “The concerns that led to placement,” the Department
informed the juvenile court, “do not currently exist.” Echoing
that assessment, the juvenile court at the six-month review
hearing (see § 366.21, subd. (e)) observed that Mother’s and
Father’s progress “toward alleviating or mitigating the causes
necessitating placement has been substantial.” It ordered Z.G.’s
return to parental custody.
      Three months later, in July 2021, a second dependency
proceeding began. Earlier that month, Mother and Father had
a second child, A.G. The Department sought to declare A.G. a
dependent, and it also filed a subsequent petition as to Z.G. (See
§ 342.) While the Department stated that Mother “has been
proactive in getting her services and children’s needs met” and
had negative drug tests, the Department raised concerns about
alleged domestic violence and substance abuse by Father.




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                             In re Z.G.
                   Opinion of the Court by Liu, J.


       At the subsequent hearing on the children’s detention,
counsel for the minors remarked that Mother “has made some
very good efforts to keep the children safe,” and the court
ordered the children to be maintained with Mother. A few weeks
later, in August, the juvenile court, following the Department’s
recommendation, removed both children from Father but
ordered that they remain in Mother’s custody. Again, counsel
for the children noted that Mother was “doing a good job in
keeping the kids safe.”
      Over the next months, Mother’s and Father’s trajectories
continued to diverge. The Department remained concerned
about potential domestic violence and substance abuse by
Father, and he fell out of contact with the Department. Mother
maintained a safe and clean house; completed her counseling
and domestic violence classes in accordance with her case plan;
continued to test negative for substances; developed a support
network; and left her relationship with Father. In April 2022,
the    juvenile   court,    following   the    Department’s
recommendations, terminated reunification services as to
Father and kept both children with Mother supported by family
maintenance services.
      In the fall of 2022, the Department asserted Mother had
not shown up for several drug tests, although Mother claimed
she was testing. The Department later acknowledged providing
“misinformation” on Mother’s drug test record and concluded
that Mother had tested negative 28 times. Meanwhile, Z.G. was
diagnosed with a heart issue, and both the Department and the
children’s attorney sought to continue the juvenile court’s
oversight of Mother to ensure adequate medical care for Z.G.




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                             In re Z.G.
                   Opinion of the Court by Liu, J.


      By the new year, the Department had decided to
recommend dismissing the cases. It had “no concerns that
[M]other has relapsed or cannot maintain custody of the
children,” and the Department further verified that Mother had
attended Al-Anon, “tested clean for the past two years,”
completed individual counseling, took her domestic violence
classes, and otherwise completed her case plan. Indeed, Mother
“expressed her frustration that the case is still open when she
has completed the case plan,” and the Department “d[id] not see
that keeping the case open is benefitting her or the children.”
      But soon after, in March 2023, the Department filed
supplemental petitions for both children under section 387. On
a supplemental petition, the court proceeds by first setting an
adjudicatory hearing to determine if the allegations in the
petition are true; if it sustains the petition, it then sets a
disposition hearing. (See Cal. Rules of Court, rule 5.565(e); In
re D.D. (2019) 32 Cal.App.5th 985, 990.) Here, the Department
alleged in its petition that Mother was no longer cooperating
with her case plan or testing for drugs, that she had lost her
housing, and that she was no longer in contact with the
Department. The court detained the children and issued
protective custody warrants; it subsequently sustained the
allegations in the petition. The children had been in Mother’s
custody for over 18 months, since August 2021, before they were
detained.
      In April 2023, the Department recommended removing
the children. The Department concluded that Mother was no
longer cooperating with the case plan and had stopped
consistently testing, and the Department’s social workers noted
allegations that Mother was drinking. The Department also



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                              In re Z.G.
                    Opinion of the Court by Liu, J.


became concerned with Mother’s health after she was
hospitalized.
      Ordinarily, when a child is removed, a parent is
statutorily entitled to reunification services for a set duration of
time. (See § 361.5, subd. (a); Michael G., supra, 14 Cal.5th at
p. 625.) These services begin after the disposition hearing.
(§ 361.5, subd. (a)(1)(A)–(B).) Here the disposition hearing on
the supplemental petitions occurred in May 2023. At that point,
Mother had not yet received reunification services as to A.G.;
indeed, the Department’s original recommendation was to order
services upon removing the children. But at the hearing, the
juvenile court terminated reunification services for both
children and set a permanency planning hearing. In its
submission to the court, the Department recognized that
“[M]other is willing to do her case plan” and that Mother and
the children “have a strong bond.” But it said that “legally
[M]other’s services are to be terminated.” Before terminating
reunification services, the juvenile court asked, “Isn’t the
mother out of time statutorily for services to be provided?” The
Department’s attorney answered in the affirmative. Mother’s
counsel requested continued reunification services but did not
provide any reasons.       He also did not challenge the
Department’s assertions.
      Two weeks after the hearing, Mother filed a notice of
intent to file a writ petition to contest this result. However, her
trial counsel concluded there were no appealable issues and
never filed a brief. As a result, Mother defaulted on her writ
petition. (See In re Z.G. (Jan. 15, 2025, E083710) [nonpub. opn.]
(Z.G.).) The children were placed with relatives in late June
2023, and those foster parents eventually decided to seek
adoption.

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                              In re Z.G.
                    Opinion of the Court by Liu, J.


      A permanency planning hearing took place in April 2024.
After a 26-minute hearing, the court concluded the children
were likely to be adopted and terminated Mother’s parental
rights as to both children. Mother filed a notice of appeal that
day. In addition, her appellate counsel filed a petition for a writ
of habeas corpus in August 2024.
      The Court of Appeal affirmed the termination of Mother’s
parental rights. Acknowledging that Mother never received
reunification services for A.G., the Court of Appeal reasoned
that the juvenile court at the section 366.26 hearing was not
required to find that Mother received reunification services or
that bypass of such services was appropriate. (Z.G., supra,
E083710.) It declined to evaluate Mother’s attack on the setting
of the section 366.26 hearing, concluding that it lacked
jurisdiction because Mother appealed only the order
terminating parental rights rather than the order removing the
children and setting the hearing. (Z.G., supra, E083710.)
Furthermore, it affirmed the juvenile court’s conclusion that the
beneficial parental relationship exception did not apply. (Ibid.;
see § 366.26, subd. (c)(1)(B)(i).) The Court of Appeal also
summarily dismissed Mother’s habeas corpus petition. (In re
A.G. (Jan. 15, 2025, E084563) [nonpub. opn.].)
     Justice Menetrez dissented. He would have concluded
that Mother received ineffective assistance of counsel because
counsel failed to argue that Mother was entitled to reunification
services as to A.G. and because counsel failed to file a writ
petition to challenge the termination of Mother’s services and
the setting of the section 366.26 hearing. (Z.G., supra, E083710
(dis. opn. of Menetrez, J.); In re A.G., supra, E084563 (dis. opn.
of Menetrez, J.).)



                                  8
                              In re Z.G.
                    Opinion of the Court by Liu, J.


     Mother filed a timely petition for review in this court. We
granted review to decide whether parental rights can be
terminated pursuant to section 366.26, subdivision (c)(1) when
a parent did not receive reunification services and was not
bypassed for such services. In addition, we ordered Mother to
file and serve her amended habeas corpus petition before this
court, and we consolidated review of that petition with her direct
appeal.
                                 II.
      We begin by addressing the juvenile court’s judgment
terminating Mother’s parental rights as to both Z.G. and A.G.
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. We agree with Mother and hold that a
likelihood-of-adoption finding is not sufficient under section
366.26 to terminate parental rights.
      At the time of the setting of the section 366.26 hearing, as
well as at the hearing itself, subdivision (c)(1) provided (with
sentences numbered for ease of reference): “[1] If the court
determines . . . by a clear and convincing standard, that it is
likely the child will be adopted, the court shall terminate
parental rights and order the child placed for adoption. [2] The
fact that the child is not yet placed in a preadoptive home nor
with a relative or foster family who is prepared to adopt the
child, shall not constitute a basis for the court to conclude that



                                  9
                               In re Z.G.
                     Opinion of the Court by Liu, J.


it is not likely the child will be adopted. [3] A finding under
subdivision (b) or paragraph (1) of subdivision (e) of Section
361.5 that reunification services shall not be offered, under
subdivision (e) of Section 366.21 that the whereabouts of a
parent have been unknown for six months or that the parent has
failed to visit or contact the child for six months, or that the
parent has been convicted of a felony indicating parental
unfitness, or, under Section 366.21 or 366.22, 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 of parental rights.
[4] Under these circumstances, the court shall terminate
parental rights unless either of the following applies . . . .”
(Stats. 2022, ch. 870, § 2.) This language is followed by
subdivision (c)(1)(A), which provides for placement with a
relative who is willing to serve as a legal guardian, and by
subdivision (c)(1)(B), which lists several grounds on which the
court may find “a compelling reason for determining that
termination would be detrimental to the child.”
      We refer to the first finding (“that it is likely the child will
be adopted”) as the likelihood-of-adoption finding; the other
findings (the text between “[a] finding under subdivision (b) or
paragraph (1) . . .” and “. . . has terminated reunification
services”) as the additional findings; and the language at the end
(“unless either of the following applies”) as the exceptions.
                                   A.
      The Department directs us to the first sentence of section
366.26, subdivision (c)(1): If the court finds that “it is likely the
child will be adopted, the court shall terminate parental rights
and order the child placed for adoption.” In the Department’s



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                             In re Z.G.
                   Opinion of the Court by Liu, J.


view, the additional findings are “simply additional means” to
justify termination, but they are not necessary conditions for
terminating parental rights.
     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. In other words, the
Department agrees and courts have uniformly held that even
after making a likelihood-of-adoption finding, a juvenile court
shall not terminate parental rights if any of the exceptions
applies. (See, e.g., Celine R., supra, 31 Cal.4th at pp. 53–54
[sibling relationship exception]; In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1343, 1351–1352 [parental benefit
exception], disapproved of on other grounds in Caden C., supra,
11 Cal.5th 614; In re Jamie R. (2001) 90 Cal.App.4th 766, 773
[same]; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 [sibling
relationship and parental benefit exceptions].) This cuts against
a literal reading of the first sentence in isolation. Moreover,
under the Department’s reading, it is not clear what purpose the
additional findings serve.        (See People v. Griffin (2004)
33 Cal.4th 1015, 1027 [“ ‘[T]he Legislature is not presumed to
use statutory language in a sense which would render nugatory
. . . important provisions of a statute.’ ” (italics omitted)].)
      Further, the Department’s position is at odds with other
parts of section 366.26 and fundamental precepts of the
dependency system. The Department contends a juvenile court
must terminate parental rights upon a likelihood-of-adoption
finding even if the parent was never given reunification services
or bypassed.      However, in addition to the exceptions to

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                              In re Z.G.
                    Opinion of the Court by Liu, J.


termination set forth in section 366.26, subdivisions (c)(1)(A)
and (c)(1)(B), subdivision (c)(2)(A) commands that the court
“shall not terminate parental rights” if, among other conditions,
“[a]t each hearing at which the court was required to consider
reasonable efforts or services, the court has found that
reasonable efforts were not made or that reasonable services
were not offered or provided.” That reflects how, as Mother’s
briefing states, reunification services are at the “heart of the
dependency system.” (See Cynthia D. v. Superior Court (1993)
5 Cal.4th 242, 253 [§ 366.26 must be read “in the context of the
entire dependency process of which it is part”].) The Legislature
declared that its “intent” in establishing the dependency system
was to “preserve and strengthen a child’s family ties whenever
possible”; thus, “[f]amily reunification services shall be provided
for expeditious reunification of the child with his or her family,
as required by law.” (§ 16000, subd. (a).) “ ‘Family preservation,
with the attendant reunification plan and reunification services,
is the first priority when child dependency proceedings are
commenced. [Citation.] Reunification services implement “the
law’s strong preference for maintaining the family relationships
if at all possible.” ’ ” (In re Nolan W. (2009) 45 Cal.4th 1217,
1228.) Reunification services are one of the “[s]ignificant
safeguards . . . built into the current dependency scheme” that
balance a parent’s right to “due process and fundamental
fairness while also accommodating the child’s right to stability
and permanency.” (Marilyn H., supra, 5 Cal.4th at p. 307.) We
decline to interpret the statute in a way that permits the
termination of parental rights absent reunification services.
                                  B.
     The Department points to changes to section 366.26,
subdivision (c)(1) over time to bolster its interpretation. It notes

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                              In re Z.G.
                    Opinion of the Court by Liu, J.


that the court in In re DeLonnie S. (1992) 9 Cal.App.4th 1109
(DeLonnie S.) held that section 366.26 at the time required the
juvenile court both (1) to conclude that the child is likely to be
adopted and (2) to make one of the additional findings listed in
order to terminate parental rights. (DeLonnie S., at p. 1113.)
According to the Department, the Legislature subsequently
abrogated the holding of DeLonnie S. by deleting certain
“conditional language” that connected the likelihood-of-adoption
finding to the additional findings, thereby rendering the
likelihood-of-adoption finding sufficient for termination of
parental rights.
     Our review of the legislative history indicates that two
amendments to section 366.26 — one in 1998 and another in
2007 — are potentially relevant here. However, neither has the
import that the Department suggests.
      In 1998, the Legislature enacted Assembly Bill No. 2310
(1997–1998 Reg. Sess.). (Stats. 1998, ch. 572, § 1, pp. 3825–
3832.) As a result of this legislation, subdivision (c)(1) omitted
language that existed at the time of DeLonnie S. — specifically,
the phrases “only if,” “[i]f the court so determines,” and “shall
then constitute” — which had connected the likelihood-of-
adoption determination to the additional findings. (Compare
Stats. 1998, ch. 572, § 1, pp. 3825, 3826–3827 with DeLonnie S.,
supra, 9 Cal.App.4th at p. 1113, fn. 4 [excerpting statute].)
      But we are doubtful that the Legislature intended these
omissions to alter the relationship between the likelihood-of-
adoption determination and the additional findings. The
primary change to subdivision (c)(1) worked by Assembly Bill
No. 2310 (1997–1998 Reg. Sess.) was the addition of what is now
the second sentence: “The fact that the child is not yet placed in


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                    Opinion of the Court by Liu, J.


a pre-adoptive home nor with a relative or foster family who is
prepared to adopt the child, shall not constitute a basis for the
court to conclude that it is not likely the child will be adopted.”
(Stats. 1998, ch. 572, § 1, pp. 3825, 3826.) The first bill analysis
after the amendment that authorized this language noted a
concern that juvenile courts were refusing to terminate parental
rights until there was an identifiable prospective adoptive
family. (Sen. Com. on Judiciary, Analysis of Assem. Bill
No. 2310 (1997–1998 Reg. Sess.) as amended June 24, 1998, p.
2.) But adoptive families did not want to commit to adopting
unless the child was “legally free” out of concern that they might
subsequently lose custody. (Ibid.) To help “end this vicious
circle,” the new language clarified that juvenile courts may
make a likelihood-of-adoption finding even if the child was “not
yet placed in a pre-adoptive home []or with a relative or foster
family who is prepared to adopt the child.” (Ibid.)
      The Legislature inserted the new sentence in subdivision
(c)(1) between the likelihood-of-adoption language and the
additional findings. It appears that the drafters excised the
phrase “If the court so determines” because that phrase would
not have sensibly followed the new sentence. There is no
indication in the legislative history that this deletion was
intended to abrogate DeLonnie S., which was decided six years
earlier. Such a substantive change would have had major effects
and likely would have been controversial or at least notable.
The other changes to subdivision (c)(1) in 1998 were
grammatical and nonsubstantive.
      Indeed, reading the 1998 amendment as the Department
suggests would have created other difficulties. After the
amendment, section 366.26, subdivision (c)(1) provided that if a
court concluded the child was likely to be adopted, the court

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                     Opinion of the Court by Liu, J.


“shall terminate parental rights and order the child placed for
adoption.” (Stats. 1998, ch. 572, § 1, pp. 3825, 3826.) The
statute then stated that any of the additional findings “shall
constitute a sufficient basis for termination of parental rights
unless the court finds that termination of parental rights would
be detrimental to the child because of one or more of the
following circumstances . . . .” (Id. at pp. 3826–3827, italics
added.) As evident in the italicized phrase, the provision for
exceptions was part of the sentence on additional findings in this
version of the statute. If the 1998 amendment made the
likelihood-of-adoption finding sufficient to terminate parental
rights without regard to the additional findings, then the
exceptions provision would have been inapplicable in such cases.
Yet courts interpreting the post-1998 statute regularly
examined the exceptions after the juvenile court made a
likelihood-of-adoption finding. (See ante, at p. 11.)
      Further, the Department’s view would imply that a
juvenile court, applying the statute after the 1998 amendment,
could have concluded that a child is likely to be adopted and
ordered termination of parental rights, even though termination
“would be detrimental to the child” under subparagraph (A), (B),
(C), or (D) of subdivision (c)(1). (Stats. 1998, ch. 572, § 1,
pp. 3825, 3827.) The statute addressed this situation in
subdivision (c)(4), which is triggered “[i]f the court finds that . . .
termination of parental rights is not in the best interests of the
minor, because one of the conditions in subparagraph (A), (B),
(C), or (D) of paragraph (1) . . . applies.” (Id. at p. 3828.) Then-
subdivision (c)(4) did not order termination of parental rights;
instead, it ordered legal guardianship or long-term foster care.
(Ibid.) The Department’s reading of the 1998 amendment would
thus render the statute internally inconsistent. In sum, the


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                    Opinion of the Court by Liu, J.


Legislature’s change to subdivision (c)(1) in 1998 did not
abrogate the holding of DeLonnie S.
      The Legislature again changed subdivision (c)(1) in 2007
by enacting Senate Bill No. 703 (2007–2008 Reg. Sess.). (See
Stats. 2007, ch. 583, § 28.5, pp. 5090, 5091–5092.) As a result,
that subdivision had the same structure it has today: It stated
in separate sentences that the court “shall terminate parental
rights and order the child placed for adoption” upon a likelihood-
of-adoption finding; that the additional findings each “shall
constitute a sufficient basis for termination of parental rights”;
and that “[u]nder these circumstances, the court shall terminate
parental rights unless” certain exceptions apply. (Id. at
p. 5091.) The primary change relevant here was the rewriting
of the exceptions provision, which was part of the sentence on
additional findings after the 1998 amendment (“. . . unless the
court finds . . .”), into a separate concluding sentence that begins
with “Under these circumstances . . . .” This change alleviated
the internal inconsistency in the 1998 statute that the
Department’s reading would compel.
     The changes to section 366.26 in Senate Bill No. 703
(2007–2008 Reg. Sess.) “incorporate[d] amendments” proposed
by Assembly Bill No. 298 (2007–2008 Reg. Sess.). (Stats. 2007,
ch. 583, § 37, p. 5111; compare § 28.5, pp. 5090, 5091–5092, with
§ 28, pp. 5079, 5080–5081.) Assembly Bill No. 298, in turn,
proposed the modifications to the exceptions provision’s
language. (See Stats. 2007, ch. 565, § 4, pp. 4573, 4575.) Before
these changes, the exceptions provision of subdivision (c)(1)
provided that the additional findings “shall constitute a
sufficient basis for termination of parental rights unless the
court finds a compelling reason for determining that
termination would be detrimental to the child”; the statute then

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                    Opinion of the Court by Liu, J.


listed various circumstances that constitute detriment to the
child. (See Assem. Bill No. 298 (2007–2008 Reg. Sess.) as
introduced Feb. 9, 2007, § 4.) Against this backdrop, Assembly
Bill No. 298 addressed the treatment of relatives serving as
permanent caregivers and created a new exception to
termination of parental rights where the child was living with a
relative who could be a legal guardian even if the court did not
find “a compelling reason for determining that termination
would be detrimental to the child.” (Ibid.) As explained in the
first bill analysis, the purpose of the proposal was to “[p]rovide[]
support and priority” for relatives able to serve as legal
guardians. (Assem. Com. on Judiciary, Analysis of Assem. Bill
No. 298 (2007–2008 Reg. Sess.) as amended Mar. 15, 2007, p. 1.)
      To accomplish this change to the exceptions, the drafters
removed the former exceptions language in the sentence on
additional findings (“unless the court finds [detriment to the
child]”), ended the sentence on additional findings, and then
provided:     “Under these circumstances, the court shall
terminate parental rights unless either of the following applies:
[¶] (A) The child is living with a relative who is unable or
unwilling to adopt the child because of circumstances that do
not include an unwillingness to accept legal or financial
responsibility for the child, but who is willing and capable of
providing the child with a stable and permanent environment
through legal guardianship, and the removal of the child from
the custody of his or her relative would be detrimental to the
emotional well-being of the child. [¶] (B) The court finds a
compelling reason for determining that termination would be
detrimental to the child due to one or more of the following
circumstances: [then listing circumstances that constitute
detriment to the child].” (Assem. Bill No. 298 (2007–2008 Reg.


                                  17
                              In re Z.G.
                    Opinion of the Court by Liu, J.


Sess.) as introduced Feb. 9, 2007, § 4.) We see no indication that
the Legislature, in making this change, intended to alter the
relationship between the likelihood-of-adoption finding and the
additional findings.
      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). 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.
                                  C.
      The Department says any error here is harmless because
reunification services as to A.G. could have been bypassed under
section 361.5, subdivision (b)(10)(A), which provides that the
court may decline to order reunification services when it
determines, by clear and convincing evidence, that 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 removal of the
sibling or half sibling.” The parties agree that a reasonable
probability test applies for assessing whether the violation of
section 366.26 was harmless. Assuming without deciding that
the parties are correct, we apply the test here.
      The Department asserts that reunification services for
A.G. could have been bypassed because Mother had not “made a
reasonable effort to treat the problems that led to the removal
of Z.G.” (See § 361.5, subd. (b)(10)(A).) According to the
Department, the juvenile court’s “willingness to ‘terminate’


                                  18
                              In re Z.G.
                    Opinion of the Court by Liu, J.


Mother’s services for A.G. demonstrates a significant likelihood
that the court would have” ordered bypass. We disagree. Before
the disposition hearing, the Department represented that
“legally” 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. We conclude it is not reasonably probable
that the trial court would have found, by a clear and convincing
standard, that Mother did not make a “reasonable effort” to
treat the problems that led to Z.G.’s removal. (§ 361.5,
subd. (b)(10)(A).)
      Nor do we think there is substantial evidence in the record
to support a bypass of reunification services. Although the trial
court did not address the issue, it is contested before this court,
its resolution turns entirely on the factual record before us, it
was addressed in the Court of Appeal, and leaving it undecided
could further delay permanent placement of the children in
these proceedings. In such circumstances, the trial court does
not appear “better positioned” to address the issue than this
court. (Truck Ins. Exchange & Kaiser Cement & Gypsum Corp.
(2024) 16 Cal.5th 67, 101; cf. ibid. [remand order to Court of
Appeal with “discretion to make a further remand . . . if it
concludes that the trial court is better positioned” to address
certain issues].)
      As noted, the relevant statute allows bypass of
reunification services as to one child if a parent has not “made a

                                  19
                              In re Z.G.
                    Opinion of the Court by Liu, J.


reasonable effort to treat the problems that led to removal of”
the child’s sibling. (§ 361.5, subd. (b)(10)(A).) In their briefing,
Mother and the Department agree that for purposes of the
“reasonable effort” analysis, courts must consider the “entire
time span” between the child’s initial removal from parental
custody and the dispositional hearing at which the Department
would have denied Mother reunification services. (In re Jayden
M. (2023) 93 Cal.App.5th 1261, 1274 (Jayden M.).) We assume
without deciding that the relevant timeframe is the entire
period between Z.G.’s initial removal and the May 2023
dispositional hearing.
      Z.G.’s removal was initially motivated by concerns about
substance abuse in the family and Mother and Father leaving
Z.G. with untrustworthy caretakers.            From the first
dispositional hearing, the juvenile court acknowledged that the
parents had “cooperated with [the] initial services” and “made
progress in alleviating the problems.” At the six-month review,
the Department recommended Z.G.’s return to Mother and
Father’s custody, noting they had engaged with their case plans
such that “[t]he concerns that led to placement do not currently
exist.” The juvenile court described their progress toward
alleviating the problems that led to Z.G.’s removal as
“substantial.” The children ultimately remained with Mother
for over a year and a half. The Department’s social workers
noted she had “tested clean for the past two years” in February
2023; from Z.G.’s first removal in late October 2020 until June
2022, Mother tested negative for drugs at least 24 separate
times and positive once. She completed counseling, took
domestic violence classes, attended Al-Anon group meetings,
and completed a case plan. She exited her relationship with
Father, whose substance abuse and threats of domestic violence


                                  20
                              In re Z.G.
                    Opinion of the Court by Liu, J.


were the primary basis for the Department’s supplemental
petition as to Z.G. and initial petition as to A.G.
     The Department points to the events leading up to the
juvenile court terminating reunification services. According to
the Department, in the months before March 2023, Mother
stopped cooperating with her case plan. She lost stable housing,
fell out of contact with the Department, stopped testing for
drugs, and experienced poor health. We do not understand the
Department to argue, however, that Mother’s housing insecurity
or hospitalization could be a basis for bypassing reunification
services; these were not allegations in the Department’s original
dispositional report seeking Z.G.’s removal, so they were not
“problems that led to removal of” Z.G. (§ 361.5, subd. (b)(10)(A);
see In re D.H. (2014) 230 Cal.App.4th 807, 816–817.)
      Rather, the Department argues Mother “relapsed and
continued to abuse substances and place her children in
danger.” The record is mixed on whether Mother began to abuse
alcohol or substances again, but it does show that Mother
stopped regularly testing in the middle of 2022. The record also
contains allegations of Mother drinking again and suggestions
that Mother’s declining health may have been linked to use of
alcohol. But even if Mother relapsed, that would not preclude a
finding that she made a reasonable effort to address the
problems that led to Z.G.’s removal. The question is not whether
Mother “ ‘cure[d]’ ” any substance abuse issue; it is whether she
“made reasonable efforts to treat it.” (Renee J. v. Superior Court
(2002) 96 Cal.App.4th 1450, 1464 (Renee J.); cf. In re B.E. (2020)
46 Cal.App.5th 932, 941 [“[R]elapse is a normal part of recovery.
In other words, a relapsed parent is far from hopeless. It is
decidedly not fruitless to offer services to a parent who genuinely



                                  21
                              In re Z.G.
                    Opinion of the Court by Liu, J.


made an effort to achieve sobriety but slipped up on the road to
recovery.”].)
       In assessing reasonableness, we consider “the duration of
the parent’s effort,” the “ ‘extent and context’ ” of the parent’s
effort, and “other factors related to the ‘quality and quantity of
those efforts.’ ” (Jayden M., supra, 93 Cal.App.5th at p. 1276.)
Although Mother’s efforts in the months leading up to March
2023 may seem insufficient standing alone, her overall efforts
throughout the two-and-a-half-year span of this case were not
“lackadaisical or half-hearted.” (Cheryl P. v. Superior Court
(2006) 139 Cal.App.4th 87, 99.) She was demonstrably sober for
over a year and a half; she completed her initial case plan,
including participating in all mandated substance abuse
treatment services; and she had custody of Z.G. and safely cared
for her for over 18 months. Even in May 2023 when the
Department recommended termination of services, it noted that
Mother was still “willing to do her case plan” and that she had
a “strong bond” with both children. Even if Mother’s conduct
was inadequate leading up to the dispositional hearing, we
reject the “selective hindsight” of focusing exclusively on those
months; the question is whether, “consider[ing] all of her
conduct,” she made reasonable efforts. (Renee J., supra,
96 Cal.App.4th at p. 1464, italics omitted.) Viewing the record
as a whole, we are unable to find substantial evidence
demonstrating to a clear and convincing standard that Mother
did not make a reasonable effort to address the problems that
led to Z.G.’s removal.
                                  D.
     Our holding is sufficient to reverse the Court of Appeal’s
judgment affirming the juvenile court’s termination of Mother’s



                                  22
                              In re Z.G.
                    Opinion of the Court by Liu, J.


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. (§ 366.26, subd. (c)(1)(B)(v).)
The Department does not contest that argument.
       As Justice Menetrez observed, A.G. and Z.G. “have lived
together for the entirety of their young lives.” (Z.G., supra,
E083710 (dis. opn. of Menetrez, J.).) The record provides no
reason to doubt that “ongoing contact” between the siblings
would be in Z.G.’s “best interest.” (§ 366.26, subd. (c)(1)(B)(v).)
It is 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 have been
“detrimental” to her due to “substantial interference” with her
“sibling relationship” with A.G. (Ibid.) We therefore reverse the
termination of parental rights as to both children.
                                 III.
      Beyond the judgment terminating her parental rights,
Mother also challenges earlier orders in these proceedings
through her petition for a writ of habeas corpus. This court has
“long recognized habeas corpus as a vehicle for challenging child
custody decisions.” (In re A.R. (2021) 11 Cal.5th 234, 247, fn. 1
(A.R.).) Habeas corpus is a traditional vehicle for asserting
claims of ineffective assistance of counsel, as Mother does here.
(See id. at pp. 249, 254–255.) A parent may seek relief based on
the denial of a statutory right to competent representation in a
juvenile dependency proceeding. (Id. at p. 249; see §§ 317,
317.5.) A parent raising such a claim must show deficient
performance by counsel, prejudice from that deficiency, and




                                  23
                              In re Z.G.
                    Opinion of the Court by Liu, J.


“promptness and diligence” in pursuing relief. (A.R., at pp. 251–
253.)
      Mother claims ineffective assistance of counsel on four
separate grounds: (1) counsel did not object at the May 2023
disposition hearing when the juvenile court purported to
terminate Mother’s reunification services with A.G. and set the
section 366.26 hearing; (2) counsel did not object to the
children’s removal; (3) counsel did not file a writ petition seeking
review of the children’s removal and the setting of the section
366.26 hearing; and (4) counsel did not argue a lack of statutory
basis to terminate parental rights as to A.G. at the section
366.26 hearing. We conclude that counsel’s failure to object
when the juvenile court purported to terminate Mother’s
reunification services as to A.G. and set the section 366.26
hearing, as well as counsel’s subsequent failure to seek writ
review of the setting of the section 366.26 hearing, were
ineffective assistance.
      The Department and Mother agree that Mother’s trial
counsel was deficient in failing to raise Mother’s entitlement to
reunification services as to A.G. We, too, agree that the failure
to raise that issue was, as the Department acknowledges, a
“clear oversight.” Although the Department contends that
Mother was not prejudiced by the error, its rationale is that
Mother would have been bypassed for reunification services —
an argument we have already rejected. (See ante, at pp. 18–22.)
      Finally, the Department asserts that Mother cannot
secure relief on habeas corpus because she did not “promptly
take action to set aside the dismissal of her writ proceedings.”
(See A.R., supra, 11 Cal.5th at p. 258 [a parent must “diligently
s[eek] relief from default within a reasonable timeframe,


                                  24
                              In re Z.G.
                    Opinion of the Court by Liu, J.


considering the child’s ‘ “unusually strong” ’ interest in
finality”].) But Mother promptly filed a notice of intent to file a
writ petition, and her attorney concluded there were no
appealable issues to raise and never filed an opening brief. The
Department appears to argue that Mother should have urged
her attorney to prosecute the petition anyway. “[T]hat is not the
way the attorney-client relationship works. It is the attorney’s
role to analyze the client’s legal position and suggest a strategy
or recommend issues that should be explored.” (In re S.D. (2002)
99 Cal.App.4th 1068, 1079 (S.D.).) We see no basis for faulting
Mother for failing to urge a petition contrary to the judgment of
her attorney. Alternatively, the Department may be arguing
that Mother should have filed her habeas corpus petition
alleging ineffective assistance of counsel immediately after her
writ petition defaulted. But that would impose an unreasonable
burden on Mother. She was entitled to rely on her attorney, and
there is no basis for faulting her for failing to procure
independent counsel after the default, especially since she could
not afford counsel and was represented by a court-appointed
attorney. (See § 317, subd. (a)(1).)
      Moreover, the risks of delay identified in In re A.R. had to
do with “jeopardizing the child’s long-term placement” after the
time for appealing the termination of parental rights had
passed. (A.R., supra, 11 Cal.5th at p. 253.) In this case, Mother
timely appealed, and the juvenile court’s termination order is
only final after the parent’s right to appeal has been exhausted.
(§ 366.26, subd. (i)(1).) Where, as here, a parent files a habeas
corpus petition concurrently with a timely appeal of the
termination order, her ineffective assistance of counsel claim
should not be denied for lack of diligence, even if the alleged



                                  25
                              In re Z.G.
                    Opinion of the Court by Liu, J.


ineffective assistance occurred at earlier stages of the
dependency proceedings.
      We also reject the related argument that we lack
jurisdiction to hear Mother’s claim of ineffective assistance of
counsel relating to the termination of reunification services and
the setting of the section 366.26 hearing. (See, e.g., In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1161–1163; In re Janee
J. (1999) 74 Cal.App.4th 198, 208.) For one thing, because we
have reversed the termination of parental rights on statutory
error, allowing Mother’s challenge to the setting of the
permanency planning hearing does not “subvert the
predominant interests of the child and the state in finality and
reasonable expedition.” (Meranda P., at p. 1156.) Moreover,
while the statute precludes challenges to the setting of a section
366.26 hearing except through a timely filed extraordinary writ
(Z.G., supra, E083710; see § 366.26, subd. (l)), counsel’s
deficiency effectively denied Mother “the opportunity to pursue
her appeal in the first place” (A.R., supra, 11 Cal.5th at p. 251)
insofar as Mother filed a notice of intent to file a writ petition
yet her counsel refused to prosecute the challenge. In such
circumstances, allowing her claim is “the only meaningful way
to safeguard [her] statutory right to competent representation”
in dependency proceedings, and habeas corpus may offer relief
in this circumstance even against “jurisdictional filing
deadlines.” (Id. at pp. 254–255.)
      In sum, we hold that Mother received ineffective
assistance of counsel when her trial counsel failed to assert her
statutory rights to reunification services as to A.G. at the
disposition hearing and on writ review of the setting of the
permanency planning hearing. Accordingly, we vacate the
portions of the juvenile court’s May 2023 order that terminated

                                  26
                              In re Z.G.
                    Opinion of the Court by Liu, J.


Mother’s reunification services as to A.G. and set a section
366.26 hearing for A.G. And because services as to A.G. in all
likelihood would have affected Z.G.’s trajectory given their
sibling relationship, we vacate the setting of the section 366.26
hearing for Z.G. as well.
                         CONCLUSION
      As to Mother’s direct appeal, we reverse the judgment of
the Court of Appeal and remand to the Court of Appeal with
directions to reverse the juvenile court’s orders terminating
parental rights as to Z.G. and A.G. and to remand to the juvenile
court for further proceedings consistent with this opinion. As to
Mother’s habeas corpus petition, we vacate the juvenile court’s
orders terminating reunification services as to A.G. and setting
a section 366.26 hearing as to both Z.G. and A.G. We direct the
juvenile court to hold a new disposition hearing for Z.G. and A.G.
to determine an appropriate remedy in response to claims
properly presented before it, with due consideration for Mother’s
entitlement to reunification services with A.G. and the fact that
Z.G. and A.G. “have lived together for the entirety of their young
lives.” (Z.G., supra, E083710 (dis. opn. of Menetrez, J.); see, e.g.,
§§ 352, 366.22, subd. (a)(3), 388; Michael G., supra, 14 Cal.5th
at pp. 632–633; Mark N. v. Superior Court (1998)
60 Cal.App.4th 996, 1016–1017.)




                                  27
                             In re Z.G.
                   Opinion of the Court by Liu, J.


                                             LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
EVANS, J.
BALTODANO, J.*




*
      Associate Justice of the Court of Appeal, Second Appellate
District, Division Six, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                 28
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion In re Z.G.
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 1/15/25 – 4th
Dist., Div. 2
Rehearing Granted
__________________________________________________________

Opinion Nos. S289430, S289441
Date Filed: April 27, 2026
__________________________________________________________

Court: Superior
County: San Bernardino
Commissioner: Lynn M. Poncin
__________________________________________________________

Counsel:

Paul A. Swiller, under appointment by the Supreme Court, for
Defendant and Appellant and for Petitioner.

Tom Bunton, County Counsel, Pamela J. Walls and David R.
Guardado, Deputy County Counsel, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Paul A. Swiller
Attorney at Law
1901 First Avenue, Second Floor
San Diego, CA 92101
(619) 356-0848

David R. Guardado
Deputy County Counsel
385 North Arrowhead Avenue, 4th Floor
San Bernardino, CA 92415
(909) 387-7752