By: Hepner & Pagan, LLP January 22, 2026

Terminating Parental Rights: The Legal Threshold for “Unfitness” in California

The Constitutional Weight of Parental Rights

In California, parents have a fundamental right to direct the upbringing of their children. Because this right is so significant, the legal system requires clear and convincing evidence before a judge will consider termination. This is a higher burden of proof than the typical “preponderance of the evidence” standard used in most civil cases.

The court will not terminate rights simply because one parent has a higher income. Instead, the court must find that statutory grounds for termination have been met under the California Family Code or Welfare and Institutions Code.

Grounds for Termination Under California Family Code 7820

The California Family Code outlines specific circumstances in which a parent may lose their legal rights. These laws apply to private actions, such as when one parent seeks to terminate the other parent’s rights to allow a stepparent adoption.

Abandonment

Under California Family Code Section 7822, a parent may be deemed to have abandoned a child if they left the child in the care of another person for six months (or one year if left with the other parent) without any communication or financial support. The court looks for the “intent to abandon.” If a parent has gone months without a phone call, a letter, or a child support payment, a judge may find this threshold has been met.

Neglect or Cruelty

Family Code Section 7823 allows for termination if a child has been neglected or cruelly treated. The goal is to ensure the child has a stable, safe environment free from physical or emotional harm.

Habitual Substance Use and Disability

Family Code Section 7824 addresses parents who suffer a disability because of the habitual use of alcohol or controlled substances. For rights to be terminated on these grounds, the parent’s struggle with addiction must render them unable to adequately care for and control the child. The court also considers whether the parent has been deprived of custody for a continuous year before the petition is filed.

The Role of Juvenile Dependency Courts

While private terminations happen under the Family Code, many cases involving “unfitness” originate in the juvenile dependency system. When the Santa Clara County Department of Family and Children’s Services (DFCS) removes a child from a home due to abuse or neglect, the case falls under Welfare and Institutions Code Section 366.26.

In these cases, the court first offers reunification services. These services might include parenting classes, drug testing, or counseling. If a parent fails to complete these requirements and the court determines that returning the child to the home would be detrimental, the court may set a hearing to terminate parental rights and clear the way for adoption.

Conviction of a Felony

A parent’s criminal history does not automatically result in the loss of parental rights. Under Family Code Section 7825, rights can be terminated if a parent is convicted of a felony that proves “unfitness.” The court looks at the nature of the crime and whether the length of the prison sentence will deprive the child of a stable home for a long period. The focus remains on whether the parent-child relationship can be maintained in a way that serves the child’s well-being.

The “Best Interests of the Child” Standard

Meeting the legal definition of unfitness is only the first half of the process. Even if a parent is found unfit, a California judge will not terminate rights unless it is in the “best interests of the child.”

The court considers several factors:

The child’s age and developmental needs
The strength of the bond between the child and the parent
The child’s need for stability and a permanent home
The child’s own wishes, if they are old enough to express them

In Santa Clara County, the courts often appoint an attorney for the child to ensure their voice is heard during these proceedings.

How the Process Works in Santa Clara County

Petitions to terminate parental rights are typically filed in the Superior Court of California, County of Santa Clara. For Campbell residents, these matters are generally heard at the Family Justice Center Courthouse in San Jose.

The process involves filing a formal petition, serving the other parent with notice, and often an investigation by a court-appointed investigator. This investigator will interview the parties and the child, then submit a report to the judge with a recommendation. Because the outcome is permanent, the court follows strict procedural rules to protect everyone’s due process rights.

Moving Forward with Compassion and Strategy

We understand that cases involving the termination of parental rights are among the most emotional experiences a family can face. At Hepner & Pagan, we take a child-first approach to every case. We prioritize peaceful resolutions through mediation and collaborative law to shield children from the friction of the courtroom. While we strive for out-of-court settlements to save you time and stress, we also explicitly prepare every case for trial. If a compromise cannot be reached, we are ready to advocate for you and your child’s future in court.

Our deep roots in Santa Clara County and Campbell provide us with the local insight needed to handle these sensitive matters with both legal precision and genuine empathy. If you have questions about the legal threshold for parental unfitness or need immediate legal representation, we are ready to help. Please call us at 408-688-9153 for an initial phone consultation to discuss your next steps.