Filed 1/3/18 In re K.K. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



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

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

M.R. et al.,

Defendants and Appellants.


E068243

(Super.Ct.Nos. J264806, J264807
& J264808 )

OPINION


APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Reversed and remanded.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant, M.R.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant R.K.
Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
By appeal and by writ of habeas corpus, appellant M.R. (mother) appeals from a juvenile court’s order terminating parental rights as to her children, K.K., Y.K., and L.K. (the children). In her appeal, she contends: (1) her trial counsel was ineffective for failing to challenge the court’s order denying her reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(6); (2) the court erred in summarily denying her section 388 petition; and (3) the beneficial parental relationship exception applied (§ 366.26, subd. (c)(1)(B)(i)). Appellant R.K. (father) has filed a separate brief, joining in mother’s arguments and contending that, if this court reverses the order terminating her parental rights, the order terminating his parental rights must likewise be reversed. We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
On April 1, 2016, the San Bernardino County Children and Family Services (CFS) filed section 300 petitions on behalf of the children. L.K. was 11 years old at the time, Y.K. was 10 years old, and K.K. was four years old. The petitions alleged that the children came within the provisions of section 300, subdivisions (d) (sexual abuse) and (j) (abuse of sibling). Specifically, the petitions alleged that, while in the care and custody of mother, the children’s half sibling, N.W., was sexually abused by father, and the children were at substantial risk of similar sexual abuse.
A section 300 petition was filed on behalf of N.W., as well. N.W. is not a subject of this appeal. The petition alleged that N.W. came within the provisions of section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse). Specifically, the petition alleged that mother failed to protect N.W. from sexual abuse at the hands of her stepfather (father), and that while in mother’s care and custody, N.W. was sexually abused by father.
The social worker filed a detention report stating that she received a referral on February 24, 2016, alleging that father sexually abused his stepdaughter, N.W., and that the children, who were N.W.’s half siblings, were at risk. This was the fourth referral that was received by CFS. The social worker reported that the first referral was received in October 2014, alleging that N.W. was pregnant and had an abortion. N.W., who was 15 years old at the time, stated that the father of the child was a student from her school. N.W. said her stepfather (father) knew about the abortion, but mother did not.
A second referral was received in September 2015. At that time, N.W. disclosed that the father of her unborn child was father, and he was the person who took her to get the abortion.
During an interview, N.W. reported that father had been molesting her for the past four years. N.W. said the incidents occurred in the family home when mother was at work and her sisters were at school. She said that when she was 12 years old, father began fondling her breasts and vagina. When she was in the 9th grade, father began “dipping” his penis into her vagina. When she was in the 10th grade, father started to have “full on intercourse with her.” When she refused, father would get mad, and she would get punished. N.W. said she never told anyone about the abuse because her stepfather had been in her life for 15 years, and she was worried about a divorce, her family’s financial situation, and how her younger sisters would manage without a father.
A social worker met with mother September 18, 2015, with regard to the second referral. Mother stated that she was not sure her daughter was telling the truth. Despite mother’s disbelief of the allegations, she agreed to the safety plan of having father out of the home while an investigation was completed. On September 30, 2015 and October 16, 2005, a social worker spoke with a police detective. When the detective interviewed father, he denied having any sexual contact with N.W. He completed a polygraph exam. However, the results of the exam were inconclusive. Before a Children’s Assessment Center (CAC) interview and exam could be completed on N.W., she ran away. The referral was closed as inconclusive.
A third referral was received on January 26, 2016. The maternal grandmother requested guardianship of N.W., and N.W. disclosed to a social worker that she had been sexually abused by father. N.W. said she was concerned about the other children in the home. The social worker did not report what became of this referral.
The fourth and current referral was received on February 24, 2016. Upon reading the prior referrals, the social worker decided to obtain interview warrants for the children. The social worker met with N.W. and spoke to her about only telling the truth, since she had lied in the past. N.W. acknowledged that she had lied to cover up for father, but she was now telling the truth. N.W. said mother agreed to let her stay with the maternal grandmother (MGM), with the understanding that the MGM would seek legal guardianship in order to keep her. N.W. said she ran away during the prior investigation due to mother still having father around. However, mother eventually stopped allowing her to go to the MGM’s house. N.W. said that she and mother never had a great relationship, but it was worse after she told her about the sexual abuse. N.W. reported that she told father about her pregnancy, and he got her three pregnancy tests. N.W. said that after her abortion, father picked up an antibiotic prescription for her. N.W. said she kept trying to talk to mother, but mother did not want to talk to her. She said mother was trying to make her feel guilty by saying that her sisters would not have a father. N.W. further reported that mother would exclude her from going out to eat with her and the children and from watching movies with them in the bedroom. She and mother continued to clash, so she ran away. She stayed with a friend but then ended up at the MGM’s house.
The social worker interviewed L.K. and Y.K., and both of them denied any abuse or neglect issues.
On or about March 14, 2016, N.W. had a forensic interview at CAC. She again disclosed the sexual abuse by father. N.W. indicated she told mother that father was molesting and raping her, and mother would say she believed her, but N.W. knew she did not.
On March 25, 2016, the social worker and a police detective met with mother to discuss some new information that came to light. Mother said she did not know who to believe. The social worker pointed out that mother was not being protective of N.W., but appeared to be taking father’s side. Mother replied that the social worker did not understand because she was not in her shoes. Mother confirmed that, shortly after N.W. ran away, she allowed father to return to the family home. Mother said she did not know what to do, since the children wanted to see their father.
Due to mother not protecting N.W. from the sexual abuse by father, and the fact that her failure to protect placed the children at risk of similar abuse, the social worker obtained a warrant to detain the children.
The court held a detention hearing on April 4, 2016. The court detained the children in foster care.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on April 20, 2016, recommending that the children be adjudged dependents and that reunification services be denied mother and father (the parents), pursuant to section 361.5, subdivision (b)(6). The social worker reported that guardianship proceedings were initiated on behalf of N.W. on or about November 12, 2015, and the matter was deferred to the CFS for an investigation. The social worker further reported that the children were placed together in the MGM’s care on March 29, 2016.
The social worker interviewed mother on April 12, 2016. With regard to the allegations in N.W.’s petition, mother asked how she had failed to protect her, since she let N.W. stay with the MGM. Mother also said that N.W. was a “good actress” who had a history of telling lies. Mother said she first heard of the allegations in September 2015, when N.W. called her and said she needed to talk to her about something. Mother said the entire family met with law enforcement and was questioned. Mother further stated that she agreed to the safety plan during the investigation that father was supposed to remain out of the home and have no contact with the children; however, after getting approval from a social worker named Vickie Lopez, mother allowed father to be around the children while she was with them. Mother still did not know who to believe. The social worker also noted that the parents continued to live together as a couple, and it appeared that mother had no intention of placing her children before her relationship with him.
The social worker further reported that during an interview with mother related to the MGM’s petition for legal guardianship in February 2016, mother stated that she just wanted N.W. to be happy. Mother further stated that she did not have any concerns about father with her other daughters in the home. She said she wanted to believe the sexual abuse allegations, but she was having a lot of behavior problems with N.W. Mother felt the allegations were being made because she was trying to keep N.W. from seeing her boyfriend and because N.W. did not want to follow the rules inside her home.
During the investigation for the guardianship, N.W. stated that she was concerned about her younger sisters. She was worried because she felt like mother did not protect her and did not believe her, and that if something were to happen to her sisters, mother may not protect or believe them. With regard to her abortion in 2014, N.W. admitted that she initially reported she was pregnant by someone else, but she was actually pregnant by father. She said father took her to Planned Parenthood to obtain the pills that made her abort the baby. She went to school after she took the pills and started having bad cramps, so the principal called mother. Mother brought her home from school, and N.W. showed her the prescription she had received.
The social worker concluded that mother had clearly failed to protect her daughters from the ongoing threat of harm or abuse within the home, as she continued to deny that she placed her children at any great risk of harm. When asked what she felt she needed to do to reunify with the children, mother said she did not know what she had done wrong, but that she was perhaps in her current situation because she “believed her husband and not her child.” The social worker opined that mother had already placed her relationship with father before the safety of the children; thus, it was not in the best interest of the children to provide reunification services to her or father, due to the multiple and severe incidents of sexual abuse by father against N.W.
The court held a jurisdiction/disposition hearing on April 25, 2016, and ordered the social worker to provide immediate referrals for mother to counseling. The court then continued the matter.
The social worker filed some additional information to the court on June 22, 2016. She reported that the parents had visited with the children nine times at Walden Family Services. The parents were positive, participated in activities, and engaged in conversation with the children during visits. They brought toys and food for the children and played board games with them. Mother began attending counseling sessions on April 29, 2016, and participated in six individual sessions with therapist Betty Odak. Mother still believed her husband was a good man and repeatedly reported that N.W. fabricated a lot of things. The social worker concluded that the parents were participating in services, but were not benefitting from them, as they had not admitted or accepted responsibility for their actions being the reason why the children were removed from their care.
The court held a contested jurisdictional hearing on June 23, 2016. The court found that N.W. came within section 300, subdivisions (b) and (d), and that the children came within section 300, subdivisions (d) and (j). Counsel for mother indicated that mother said father moved out of the home three weeks prior.
The court held a contested dispositional hearing on July 22, 2016, and continued the matter.
The court held the continued disposition hearing on September 6, 2016. Mother was called to testify first. She was asked several times whether she believed that father molested N.W., and she said she could not agree or disagree with the allegation. Mother repeatedly replied, “I do not know.” She said that, at the start of her counseling sessions, she did not know whether father did anything sexual to N.W., and her position had not changed. When asked whether her position on the issue could change to accept that N.W. was sexually abused by father if she continued in counseling for the next few months, mother said, “I do not know.” The court stated that it had already made a finding that the allegations were true, and the heart of whether she would receive services was whether she would acknowledge and accept what happened to N.W. Mother subsequently testified that she did not believe N.W. because N.W. had previously lied to her numerous times. She lied about bringing boys to the house and having sexual intercourse in the home. Mother said she caught N.W. having sex in her bedroom with her boyfriend. Mother said that, a year prior, N.W. told her she had an abortion, and it was her boyfriend that got her pregnant.
Mother further testified that father first moved out of the house in August 2015, when the sexual abuse was reported to the sheriff. She said she did not ask him to move out, but the detective told him he could not come back into the house. She said they signed an agreement for father not to come back to the house, and he was out of the house for approximately three months. Then, social worker Vickie Lopez told mother he could come back to the home since N.W. was living with the MGM and the children had not accused him of molestation. Then, the children were detained in April 2016. Father chose to move out of the home in June 2016. Mother testified that she did not ask him to leave, but he decided to move out in the hopes that the children could return home to mother. When asked if she believed father was a danger to any of her children, mother said, “I don’t think so.”
Betty Odak testified next. She said she treated both mother and father, until CFS referred mother to another therapist. She confirmed that mother’s opinion as to the allegations had not changed over the course of the therapy.
Social worker Makeba Parks then testified. She recommended that mother not receive any reunification services, since she did not believe the molestation took place, and she did not present as being a protective parent. Parks did not believe that mother would be able to provide a safe environment until she accepted the fact of the molestation. She testified that mother’s second therapist opined that mother had poor insight and did not believe the allegations to be true, and there was a poor prognosis for the children being safe. Parks also testified that, in her review of all the reports in this case and discussions with the social workers who handled the case, she did not receive any information that the safety plan was lifted.
Mother testified in rebuttal that Vickie Lopez told her it was okay for father to move back into the house. She also said she was planning to file for divorce.
After hearing argument from counsel, the court stated that it read and considered the reports. It found there was clear and convincing evidence that the children should be removed from the parents’ custody, in that a sibling of the children had been sexually abused by father and there were no reasonable means by which the children could be protected from further sexual abuse or a risk of sexual abuse without removing them. The court noted that, once the children were initially removed, CFS provided services in order to consider whether or not services would be appropriate in this case. The court found that more than sufficient services were provided in order to prevent the need for removal, and that the parents had been resistant to those services. The court noted that it had watched the resiliency of N.W. throughout the court proceedings and the continued pain on her face, knowing how much she needed mother’s support and understanding. The court stated that there was no issue as to what happened in this case, and the true finding was made in June. It observed that even after it made a true finding in June, mother still had concerns as to the legitimacy of the true finding. The court noted that there were multiple chances for mother to come to the perspective needed in order for the court to consider services. It observed that there was a safety plan before the case was filed, and mother decided to move father back in the home. The court went on to find that the extent of progress by either parent was completely insufficient, based on mother’s own testimony.
The court found by clear and convincing evidence that mother and father both fell within the provisions of section 361.5, subdivision (b)(6). There was a finding of severe sexual abuse, based on the allegation in the true finding. The court further found that the circumstances under which the abuse was inflicted were grave and harmful to N.W., particularly the need to go through an abortion and infections with medication. The court stated that its main concern was that mother could not acknowledge the reality of what father did; thus, they could never get to her ability to see what signs and signals might have been there that she missed. The court stated that this circumstance was a large factor in its decision. The court added that the children had a bond with the parents, but it did not find that reunification was in their best interests. Rather, the court found by clear and convincing evidence that reunification services were not in their best interest. The court then commented that this was one of the most disturbing and horrific abuse cases it had seen. The court observed that all the siblings were young girls and that mother had multiple opportunities to show she would separate from father and put the children first, but she did not. The court then found that it was in the children’s best interests to consider the termination of parental rights.
The court declared the children to be dependents, denied reunification services to both parents, and set a section 366.26 hearing for February 21, 2017. As to N.W., the court declared her to be a dependent, denied reunification services to mother, but granted services to N.W.’s father, M.W.
On October 27, 2016, mother filed a notice of intent to file a writ petition. On November 21, 2016, mother’s counsel filed a letter stating that he had carefully reviewed the record on appeal and found no legal or factual issues upon which to base a writ. Thus, this court dismissed the petition.
Section 366.26 and Section 388 Petition
Mother filed a section 388 petition on February 2, 2017, requesting reunification services. As to changed circumstances, she alleged that she filed for divorce on January 4, 2017, and she moved from San Bernardino in an effort to restart her life. As to best interests, mother alleged that she believed the children would want to be with their mother.
On February 9, 2017, the social worker filed a section 366.26 report recommending that parental rights be terminated and the permanent plan of adoption be implemented. The social worker reported that the children were placed with the maternal grandparents, who wished to legalize their parental relationships with them. There was a mutual attachment between the children and their caregivers, and the children recognized them as parental figures.
The social worker filed a response to the section 388 petition on February 16, 2017, recommending that the petition be denied. The social worker opined that the divorce papers were only filed in order to give the court the appearance that mother was taking steps to protect the children.
On February 21, 2017, the court held a combined hearing pursuant to sections 366.26 and 388. The court stated that what needed to be shown was a change of circumstances, and the biggest change would be whether or not mother accepted N.W.’s disclosures and the court’s true findings and could therefore be protective. The court noted it had already found the allegations to be true, and it had heard testimony regarding whether or not services would be appropriate. The court stated that it did not see a change in circumstances regarding mother’s mindset, and it did not see that services were likely to change her mind, in light of the fact that there had been extensive therapy at the time of the original testimony. The court concluded that, without a change in mindset or an openness to the true findings, it would not even get to the question of whether or not the parents were still in a relationship. Thus, the court summarily denied the petition. The court continued the matter for a contested section 366.26 hearing.
The court held a contested section 366.26 hearing on April 26, 2017. Both L.K. and Y.K. testified that they wanted to be adopted by their grandmother. The visitation coach who had been observing visits between the children and the parents also testified. She said L.K. was really excited to see mother at visits. She also said Y.K. always greeted mother with a hug, and that K.K. was very excited every time she saw mother and had a hard time leaving her at the end of visits. The visitation coach further testified that the children were always excited to see father, and they talked with him about everything. Father’s counsel then argued that the beneficial parental relationship exception applied to the termination of parental rights.
The court found that the children were specifically adoptable and that it was likely they would be adopted. The court also found that the beneficial parental relationship exception did not apply. The court then terminated parental rights, and set adoption as the permanent plan.
ANALYSIS
I. Mother Has Established That She Received Ineffective Assistance of Counsel
Mother contends that her counsel rendered ineffective assistance of counsel (IAC) when: (1) he failed to challenge the denial of reunification services at the disposition hearing under section 361.5, subdivision (b)(6); and (2) he erred in failing to file a writ petition to challenge this issue. Specifically, mother asserts that her counsel failed to argue that section 361.5, subdivision (b)(6), by it terms could not apply to her since she was not the offending parent. Thus, if he had so argued, or if he had filed a writ petition on the same issue, the court would not have applied the bypass provision and proceeded to terminate her parental rights. Instead, it would have provided her with reunification services. We agree that section 361.5, subdivision (b)(6), did not apply to mother. Therefore, her counsel was ineffective for failing to challenge the denial of services on such ground.
Applying the standard test for a claim of IAC, mother must demonstrate both that: (1) her appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and (2) it is reasonably probable that but for this failure, a determination more favorable to mother would have resulted. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1479; see In re James S. (1991) 227 Cal.App.3d 930, 935-936.) Normally, the appropriate way to raise a claim of IAC is by writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) However, if it is clear from the appellate record that there could have been no tactical reason for the attorney’s action or omission, the appellate court may reach the determination that there was IAC. (See In re Arturo A. (1992) 8 Cal.App.4th 229, 243.)
“Family reunification services play a critical role in dependency proceedings. [Citation.] Unless a specific statutory exception applies, the juvenile court must provide services designed to reunify the family within the statutory time period. [Citations.] The statutory exceptions to providing reunification services under section 361.5 have been referred to as reunification ‘bypass’ provisions. [Citations.] There is no general bypass provision; the court must find by clear and convincing evidence that one or more of the subparts enumerated in section 361.5, subdivision (b) apply before it may deny reunification services to a parent.” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845-846 (Tyrone W.).) Section 361.5, subdivision (b)(6), provides that “[r]eunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, [¶] . . . [¶] (6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.” “By its express terms, subdivision (b)(6) applies to the parent who inflicted severe physical harm to the minor.” (In re Kenneth M. (2004) 123 Cal.App.4th 16, 21.)
Furthermore, the court in Tyrone W., supra, 151 Cal.App.4th at page 848 held that “the statutory language in section 361.5, subdivision (b)(6) is clearly stated, and does not authorize the court to deny reunification services to a negligent parent, that is, a parent who did not know the child was being physically abused or injured (although the parent should have reasonably known of the abuse or injury).” The court explained that, “[a]s defined in subdivision (b)(6), omission and consent both require actual knowledge, if not of the physical harm itself, then of another’s abusive acts.” (Id. at p. 851.) It then expressly held that section 361.5, subdivision (b)(6), “applies to the parent or parents who inflicted severe physical harm to the child whether by act, omission or consent, and does not apply to a negligent parent.” (Ibid.)
The court in Tyrone W. acknowledged that section 361.5, subdivision (b)(6), is not limited to the parent or parents whose act directly caused the child’s injury. (Tyrone W., supra, 151 Cal.App.4th at p. 851.) This court held in Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 561, that section 361.5, subdivision (b)(6), “applies to a parent who gave actual or implied consent to the sexual abuse of the child by another person, as well as to the parent who was the actual perpetrator of the sexual abuse.” In other words, the cases make clear that an offending parent in section 361.5, subdivision (b)(6), must be either the perpetrator of the abuse, or at least one who actually or impliedly consented to the abuse.
Here, it is undisputed that mother was not the perpetrator of the sexual abuse. Furthermore, the record contains no evidence that mother knew about the sexual abuse and either consented to it or failed to act to prevent it, thus allowing the abuse to continue. (See Tyrone W., supra, 151 Cal.App.4th at pp. 851-852.) The evidence shows that no one, including N.W., told mother that father had been sexually abusing N.W. until N.W. went to the police, after which no further sexual abuse was alleged. Before that, N.W. told social workers and mother that she was pregnant and had an abortion in 2014; however, she said the father was a student at her school. In other words, there was no evidence that mother knew N.W. was being sexually abused until after the abuse ended, or that she gave actual or implied consent to the abuse. (§ 361.5, subd. (b)(6)(B).) Moreover, the court never sustained any such allegation or found that mother was an offending parent. Rather, the court stated its main concern was that mother would not acknowledge or accept the sexual abuse by father. The court appears to have been solely focused on mother’s ability to protect the children, which was a valid concern, but not a proper basis upon which it could deny mother reunification services.
Respondent argues that mother’s counsel was not ineffective for failing to argue that section 361.5, subdivision (b)(6), did not apply, since she was the offending parent. Respondent points out that mother submitted upon a section 300, subdivision (b) allegation with regard to N.W.’s petition, which alleged that she failed to protect N.W. from sexual abuse by father. Respondent then reasons that the court found mother was an offending parent for purposes of the sexual abuse allegation asserted against N.W., and also found that the children came within section 300, subdivisions (d) and (j); therefore, the provisions in section 361.5, subdivision (b)(6), were “implicat[ed].” Respondent’s claim is meritless. First, mother submitted on the section 300, subdivision (b) allegation that she failed to protect N.W. from sexual abuse by father in N.W.’s case, not the children’s case. Second, “the failure-to-protect statute allows for a jurisdictional finding when the ‘child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . .’ [Citations.]” (K.F. v. Superior Court (2014) 224 Cal.App.4th 1369, 1386.) In contrast, section 361.5, subdivision (b)(6), allows for denial of reunification services upon a showing of “severe sexual abuse . . . to the child, a sibling, or a half sibling by a parent,” which can be based on a finding of “sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or oral-anal contact.” A failure to protect finding does not equate with a severe sexual abuse finding for purposes of denying reunification services. Thus, respondent’s claim that the court’s finding of jurisdiction in N.W.’s case somehow “implicates” section 361.5, subdivision (b)(6), is unsupported.
Respondent additionally argues that, for purposes of determining who an offending parent is under section 361.5, subdivision (b)(6), “the section 300 subdivisions under which jurisdiction was taken must be examined.” It then claims that “the court clearly found mother was offending for purposes of subdivision (j) in so far as placing the children at risk was concerned and this, in addition to the subdivision (d) allegation, adequately supported the court’s application of section 361.5, subdivision (b)(6) to deny services.” The record does not support this claim. The court did not make any finding that mother was offending with regard to the section 300, subdivision (j) allegation. In fact, the children’s petitions do not even contain allegations against mother. Rather, they allege that the children’s half sibling was sexually abused, and that the children were at risk of similar abuse.
We conclude that mother’s counsel was ineffective for failing to argue that the section 361.5, subdivision (b)(6) bypass provision did not apply to her. There was no evidence to show that mother was an offending parent. Moreover, the failure to make the argument was prejudicial. If counsel had objected to the court’s application of the bypass provision, it is reasonably probable that the court would have granted mother reunification services, rather than bypassing her services and proceeding to terminate her parental rights.
In light of our conclusion, there is no need to address mother’s other IAC claim that her counsel failed to file a writ petition to challenge the denial of reunification services. Likewise, there is no need to address her additional contentions that the court erred in summarily denying her section 388 petition, in which she requested reunification services, and that the court erred in failing to apply the beneficial parental relationship exception to the termination of parental rights.
II. Father’s Appeal
Father filed a separate brief, joining in mother’s arguments and contending that if the judgment terminating mother’s parental rights is reversed, the judgment terminating his parental rights must be reversed as well. Father is correct. The rights of both parents were terminated in a single proceeding. However, “we are reinstating mother’s rights pending further proceedings; thus the stated purpose of ‘free[ing] the dependent child for adoption’ [citation] is not now attainable.” (In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.) There is “no legitimate purpose to be served by leaving them without a father and whatever legal benefits or entitlements that may come to them through the paternal side of the biological family.” (Ibid.) Therefore, we will reinstate father’s parental rights, but emphasize that this does not affect the order denying father reunification services. (Ibid.)
DISPOSITION
The judgment terminating the rights of both parents and freeing the children for adoption is reversed. The order denying mother reunification services is reversed, and the matter is remanded for the juvenile court to hold a new disposition hearing to determine whether she is entitled to services.
If the juvenile court determines she is not entitled to reunification services, then the orders made at the section 366.26 hearing shall be reinstated. If the juvenile court finds mother is entitled to services, then it shall order reasonable services and continue the dependency.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
Acting P. J.


We concur:


MILLER
J.


FIELDS
J.