The juvenile court terminated parental rights under Welfare and Institutions Code section 366.26.

The mother of four dependent children had pending appeals from orders of the juvenile court terminating her parental rights. She further filed a petition seeking habeas relief in the form of an order commanding the juvenile court to vacate the order terminating parental rights. In the petition, she claimed that she had not been afforded competent assistance of counsel because had counsel advised the juvenile court of the existence and applicability of the section 366.26(c)(1)(E) "sibling relationship exception" to adoptability, her parental rights may not have been terminated. The Sacramento County Department of Health and Human Services (DHHS), relying principally on In re Meranda P. (1997) 56 Cal.App.4th 1143 (Meranda P.), contended that habeas corpus may not be used to collaterally attack an order terminating parental rights on the ground the parent was not afforded competent assistance of counsel. In Meranda P. the appellate court refused to issue an order to show cause on a mother's habeas corpus petition, concluding that an order terminating parental rights may be reviewed only by direct appeal.

The Court of Appeal in the present case declined to follow Meranda P. and concluded that the mother was entitled to seek review of the termination order by petition for writ of habeas corpus. It noted that the proper way to raise a claim of ineffective assistance of counsel is generally by writ of habeas corpus, not appeal. Such a claim may only be reviewed on direct appeal when there is simply no satisfactory explanation for trial counsel's action or inaction. Moreover, evidence of the reasons for counsel's tactics, and evidence of the standard of legal practice in the community as to a specific tactic, can be presented by declarations or other evidence filed with the writ petition. The appellate court noted that it was necessary to consider matters outside the appellate record and concluded that a writ of habeas corpus was the proper means for adjudicating the issue.

The appellate court further found the reasoning in Meranda P. to be unpersuasive. First, the Meranda P. court had concluded that the Legislature had expressly prohibited the collateral dispute of a termination order based on the language of section 366.26(i). This section states in relevant part that "[a]ny order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the minor person, upon the parent or parents … . After making such an order, the court shall have no power to set aside, change, or modify it, but nothing in this section shall be construed to limit the right to appeal the order." However, the appellate court in the present case found that the express terms of section 366.26(i) barred only the court issuing the order terminating parental rights from setting aside, changing, or modifying the order. The language did not provide a statutory impediment to any other court, such as an appellate court issuing direct or collateral relief. Therefore, the appellate court concluded that the statute could not be read to forbid alteration or revocation of an order terminating parental rights except by means of a direct appeal.

The second rationale cited in Meranda P., in reliance on Adoption of Alexander S. (1988) 44 Cal.3d 857, 867-868 (Alexander S.), was that a " 'habeas corpus petition may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment.' " (In re Meranda P., supra, 56 Cal.App.4th at p. 1161.) A termination order is final when the time for appeal has expired and no timely appeal has been filed, or the order has been appealed and affirmed. However, while Alexander S. involved a petition for habeas relief to challenge a final order in which the time for appeal had lapsed, both Meranda P. and the present case involved an appeal that remained pending. Therefore, the appellate court found the principle cited in Alexander S. inapplicable under the circumstances.

Last, the Meranda P. court had reasoned that the paramount interest in securing a stable home environment for the child, and the associated interest of the state in expedition and finality, would be subverted by the delay present in a habeas corpus proceeding. However, the appellate court in the present case noted that because the termination order was on appeal and not yet final, habeas corpus review would not delay finality of the termination order. The habeas petition could be decided during the pendency of the appeal. It further noted that its issuance of an order to show cause would require the juvenile court to adjudicate the habeas claims before the appeals became final. Therefore, the appellate court concluded that the mother was entitled to seek review of the termination order by petition for writ of habeas corpus, and it issued an order to show cause that required the juvenile court to adjudicate the habeas claim before the appeals became final.