Conflicting cases on siblings and bypass

A recent case has deepened a split of authority in dependency law. The split concerns one of the most frequently litigated grounds for denying reunification services to a parent.

In a dependency case, when a child is removed from one or both parents and placed in foster care, any parent from whom the child was removed is ordinarily entitled to reunification services, which consist of programs aimed at treating the problems that led to removal of the child. The court then periodically reviews the family's progress. At each review, the first issue is whether the child can be returned to a parent. If not, the next issue is whether the parent(s) will continue to receive reunification services.

If the case reaches a point where the child has not been returned and services for the parents have been terminated, then the court looks to implement the best "permanent plan" for the child. The options are essentially adoption, legal guardianship, and long-term foster care.

But sometimes the reunification process gets skipped as to one or both parents: When certain conditions are met, the court can deny reunification services at the outset to a parent who would otherwise be entitled to them. The applicable code sections are known as "bypass" provisions.

The split of authority concerns one of those bypass provisions, Welfare and Institutions Code Section 361.5(b)(10). It states that reunification services need not be provided if (1) "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian," and (2) the parent or guardian did not subsequently make "a reasonable effort to treat the problems that led to removal of the sibling or half sibling."

On the surface, the idea behind the provision seems simple enough: If you've already had your services terminated once, and you haven't made reasonable efforts to address your issues since then, you can be bypassed.

But the court in Gabriel K., 203 Cal. App. 4th 188 (2012), confronted a situation in which that simple idea seemed to conflict with the statute's text. In a previous dependency case, Gabriel was removed from his mother, who received reunification services that were eventually terminated. Gabriel's father then appeared in the case and obtained custody. The case closed with Gabriel in the father's sole custody and the mother having only monitored visits. But less than a year later, the father got incarcerated and sent Gabriel to live with the mother. A new dependency case for Gabriel ensued.

In the new case, should the mother get reunification services, or should she be bypassed? Her reunification services had previously been terminated, and there was plenty of evidence that she had not made reasonable efforts to address her issues, so it looked like bypass was a slam dunk. But the mother pointed out that her reunification services had not previously been terminated for a sibling or half sibling of Gabriel, which Section 361.5(b)(10) requires. Rather, her services had been terminated for Gabriel himself! Thus, the mother argued that Section 361.5(b)(10) did not apply, and she was entitled to services.

The Court of Appeal disagreed. The court stated that the purpose of Section 361.5(b)(10) "is to allow juvenile courts to deny reunification services if a parent has already failed at attempted reunification." The court therefore held that the mother was properly bypassed under Section 361.5(b)(10) even though she had never had her reunification services terminated for a sibling or half sibling of the child in question, namely, Gabriel. A contrary result would be "absurd," even if it would accord with the "literal meaning" of the statute.

Just a few months later, however, a different panel of the Court of Appeal disagreed with Gabriel K. In B.L., 204 Cal. App. 4th 1111 (2012), reunification services for both parents had been terminated in a prior case. That case had ended with the child in legal guardianship and the parents allowed only monitored visits. The guardians then allowed the child to live with the parents (sound familiar?), and a new dependency case followed. The trial court bypassed the parents on the basis of Section 361.5(b)(10), and on appeal the parents raised the same argument as the mother in Gabriel K.: They had never suffered a termination of reunification services for a sibling or half sibling, so 361.5(b)(10) did not apply.

This time the Court of Appeal agreed, expressly rejecting the holding of Gabriel K. The court observed that the plain language of Section 361.5(b)(10) requires that the prior termination of services be for a sibling or half sibling. The statute is unambiguous, so the court could not rewrite it.

But the court also held that the denial of reunification services to the parents was correct on an independent basis: Only a parent or guardian from whom the child is removed is entitled to reunification services in the first place. Under the court orders from the prior case, the guardians had custody of the child, and the parents did not -- the parents had only monitored visits. The parents did not regain custody merely by having the child live with them in violation of court orders, so in the new case the child was not "removed" from parental custody at all. Rather, the child was removed from the guardians; all that happened as to the parents was enforcement of their prior order for monitored visits only. The parents consequently were not entitled to services. If anyone had a right to services in the new case, it was the guardians.

The following year, the panel in J.A. v. Superior Court, 214 Cal. App. 4th 279 (2013), sided with B.L.: The statute means what it says, so Section 361.5(b)(10) applies only if the prior termination of services was for a sibling or half sibling of the child in the present case.

But just recently, the panel in I.A., 40 Cal. App. 5th 19 (2019), sided with Gabriel K.: Contrary to the statute's literal terms, Section 361.5(b)(10) can apply even if the prior termination of services was not for a sibling or half sibling.

Presumably our Supreme Court will eventually resolve the split. In the meantime, I offer a few thoughts that might be of use to trial courts addressing this issue.

Perhaps we should start by asking: Why does the statute say "sibling or half sibling"? Some bypass provisions refer to the child in the present case, some refer to a sibling or half sibling, and some refer to both. Why did the Legislature choose "sibling or half sibling" for Section 361.5(b)(10)?

In my view, the answer is: The Legislature reasonably assumed that if a child failed to reunify with a parent in a prior case, then there will be no need to remove that child from that parent in any future case, and hence no occasion to order (or bypass) reunification services for that parent as to that child ever again. Thus, if a parent is to be bypassed because of a prior termination of reunification services, the prior termination will always be with respect to a sibling or half sibling of the child in the present case.

B.L. is a useful illustration: The child did not reunify with the parents in the prior case and ended up in guardianship. Thus, in the new case the child was technically removed from the guardians, not from the parents (with whom the child resided in violation of court orders), and the parents therefore were not entitled to reunification services in the new case.

The Gabriel K. court could have applied the same reasoning: Gabriel failed to reunify with his mother in the prior case, and the father got sole custody. So in the new case Gabriel was technically removed only from the father, not from the mother (with whom he resided in violation of court orders), so she was not entitled to reunification services in the new case. J.A. and I.A. could be analyzed similarly.

But what about cases where the Legislature's assumption turns out to be false? What if the parent fails to reunify with the child but later regains custody by court order, and the same child then gets removed from the same parent in a later dependency case? Because there was no prior termination of reunification services for a sibling or half sibling, the parent cannot be bypassed. Is that an "absurd" result, as the Gabriel K. court feared?

It might not be, because in that situation it would probably be improper to bypass the parent even if the "sibling or half sibling" requirement were ignored. Section 361.5(b)(10) requires not only that the parent's services were previously terminated but also that the parent did not subsequently make reasonable efforts to treat the problems that caused removal of the child. Reasonable efforts don't have to be perfect and don't have to be successful -- they just have to be reasonable. (Albert T., 144 Cal. App. 4th 207 (2006).) If the parent made sufficient progress to convince a court to return custody, it is hard to imagine how the parent's efforts could fail to have been reasonable.

In such a case, then, providing services to the parent doesn't seem absurd. It actually makes sense. 