Supreme Court of California Justia
Citation 45 Cal. 4th 1140, 202 P.3d 1109, 90 Cal. Rptr. 3d 724

In re Charlotte D.

Filed 3/19/09 (this opn. follows companion case, S143723, also filed 3/19/09)


IN THE SUPREME COURT OF CALIFORNIA

In re CHARLOTTE D., a Minor.
___________________________________ )

CORNELIS D., et al.,
Petitioners
and
Respondents,
S142028
v.
Ct.App. 2/6 B183788
RONALD D.,
) Ventura
County
Objector and Appellant.
Super. Ct. No. A14917
____________________________________)

This case, like Guardianship of Ann S. (Mar. 19, 2009, S143723) __
Cal.4th __ (Ann S.)), concerns the constitutionality of Probate Code section 1516.5
(hereafter, section 1516.5). Under section 1516.5, parental rights may be
terminated based on the child’s best interest after two years of probate
guardianship, when a guardian seeks to adopt the child.1 The Court of Appeal
below held the statute unconstitutional as applied to unwed fathers who have
demonstrated a full commitment to parental responsibility, under Adoption of
Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). The court reasoned that due process
requires a finding of parental unfitness before such a father may be deprived of his
parental rights. It remanded for the trial court to determine whether the father in
this case could show the necessary commitment to parental responsibility.
1
Section 1516.5 does not apply to guardianships established in juvenile
dependency proceedings under the Welfare and Institutions Code. (§ 1516.5,
subd. (d); see Welf. & Inst. Code, §§ 360, 366.26, 366.3.)
1



We reverse. As discussed in Ann S., supra, __ Cal.4th __, section 1516.5
does not violate due process on its face by adopting the best interest of the child as
the standard for terminating parental rights. However, the statute is open to
constitutional challenge as applied to an individual parent. Here, the Court of
Appeal erred by deeming father an eligible candidate for constitutional protection
under Kelsey S. Unlike the petitioner in Kelsey S., he was not prevented by the
child’s mother from acquiring the statutory rights of a presumed father. (See
Kelsey S., supra, 1 Cal.4th at pp. 824-825.) Father had those rights, but expressly
waived them when his child was placed in guardianship. Furthermore, section
1516.5 applies to him no differently than to any other parent, so the equal
protection considerations underlying our decision in Kelsey S. are entirely absent.
There may be a case in which a parent who has made the kind of
commitment to parental responsibility contemplated in Kelsey S. finds it necessary
to place a child in probate guardianship for an extended period, and thereafter
faces the termination of his or her parental rights under section 1516.5. This,
however, is not that case. Father makes no attempt to defend the Court of
Appeal’s application of Kelsey S., confining his arguments to the facial
constitutionality of section 1516.5. Moreover, his relationship with the child was
thoroughly explored at the section 1516.5 hearing, and the evidence
overwhelmingly established that he was anything but a fully responsible parent.
I. BACKGROUND
Charlotte D. was born in August 1995 to Ronald D. and Linda C., an
unmarried couple. Since June, mother had been living with father’s parents,
respondents Cornelis and Brigitte D., at their home in Ventura County. Father was
in a Nevada jail, having been charged with assault with a deadly weapon after
running into two security guards with his car.
In December 1995, mother took Charlotte to live with her and father in Las
Vegas. Both parents had drug and alcohol problems. Their relationship was
unstable, marked by arguments and domestic violence. When Charlotte was a
2
year old, Brigitte sought intervention from child protective services in Las Vegas.
Father was in jail on a domestic violence charge, and mother was unable to care
for Charlotte because of her substance abuse. Brigitte told an investigator that
Charlotte was placed with a relative who also used drugs, but evidently she was
returned to her parents. According to father, he tried to protect the child by taking
her away from mother, who abused her. In December 1997, he was arrested again
for domestic violence against mother. He “went on the run” with Charlotte, by his
own admission, and took her to live with Cornelis and Brigitte, who have had
custody of the child since that time. Brigitte retired from her job as a registered
nurse to care for Charlotte. Father returned to Nevada and served a jail term.
In 1998, mother filed an action against father in Nevada for violating her
custody rights. Father was released from jail and came to live with his parents.
Brigitte testified that she and her husband had hoped to help him form a healthy
parental relationship with Charlotte, but the attempt was “a disaster.” They
established rules against drinking, drugs, and foul language, but father was
frequently intoxicated and abusive, particularly when Brigitte refused to allow him
to drive with Charlotte. He had no driver’s license.
In March 1999, the Nevada custody case was resolved by stipulation.
Brigitte and Cornelis had joined the litigation, seeking appointment as Charlotte’s
guardians. Both parents consented to the guardianship and agreed to waive their
statutory rights to parental preference in any future custody litigation. Mother was
allowed visitation, which she never exercised. Because father was living with the
guardians, no visitation was ordered for him. Although he was required to pay
$300 a month in child support, he made no payments and was $23,000 in arrears
by the time of the section 1516.5 hearing.
While living with his parents, father was cited or arrested for public
intoxication, presenting false identification to a police officer, failing to appear,
driving under the influence, and carrying a loaded firearm. His disputes with his
parents and bouts of intoxication continued. He frightened Charlotte on one
3
occasion by taking her into his room, placing the family cat in a bag, and swinging
it around until it screamed. Father moved out of his parents’ home at the end of
2001, but the problems persisted. He brought Charlotte to a store where she saw
him shoplifting. He took her to liquor stores, where he bought small bottles that
he would conceal in a paper bag and drink in the car. He entered her bedroom
through the window on one occasion, which prompted his parents to install
security shutters. Charlotte frequently requested that the shutters be closed, even
during the daytime.
In December 2001, father cornered Brigitte in her laundry room, raging at
her, making biting motions toward her nose, and screaming that she was trying to
take his child away. In July 2002, he struck Cornelis with a car, severely
fracturing his leg. Father was enraged because Cornelis had refused to let him
take Charlotte on an outing. Brigitte witnessed the incident, and saw father
looking directly at Cornelis as he struck him. Brigitte and Cornelis obtained a
protective order requiring father to stay away from them.
Following this incident, father had some counseling sessions with Ellen
Yates, a psychologist who had consulted with the family since the time of the
Nevada custody dispute. During the course of the counseling, father became
increasingly agitated, volatile, and hostile toward his parents. Although they had
assisted their 41-year-old son financially throughout his adulthood, and were
caring for his daughter full time, he displayed no gratitude. He was preoccupied
by their disagreements over Charlotte’s activities and the idea that they were
trying to take her away from him. He became accusatory toward Dr. Yates as
well. She was concerned for her safety and eventually ended the sessions due to
father’s intransigence and volatility.
Father was granted supervised visitation with Charlotte early in 2003. In
April 2003, he sought custody in the domestic violence proceeding initiated by his
parents. The court found that California was now Charlotte’s home state, and
4
assumed jurisdiction of any modifications to the Nevada guardianship order. It
ordered that Brigitte and Cornelis retain sole custody.
Father’s supervised visits with his daughter did not go well. Charlotte felt
unsafe with him and wanted the visitation monitor to remain nearby. When the
monitor was not near, father would whisper to her about taking her away, to
Alaska or Spain or on a skiing trip, which frightened her. Against the monitor’s
instructions, he repeatedly told Charlotte she would be coming to live with him,
spoke to the child about the legal proceedings, and disparaged his parents. He
argued with his parents at the visitation site. In March 2004, visitation was
discontinued. The monitor reported: “It is necessary to terminate visitation due to
repeated violations of the behavioral guidelines by numerous verbal and written
warnings [sic]. These violations include derogatory comments about the custodial
guardians, arguing with the custodial guardians on the visitation premises,
personal references about the monitor, probing and harassing questions to
Charlotte, statements that frighten her, use of foul language to the monitor and
calling the monitor while intoxicated. These disruptive behaviors do not allow
[Charlotte] an emotionally or psychologically safe place for supervised visitation
to occur.”
In 2004, father was convicted of a number of offenses: misdemeanor
battery on a peace officer, felony obstruction of an executive officer, felony
domestic violence, and theft from his girlfriend. After the felony convictions in
August 2004, he was placed in a substance abuse treatment facility. In September
2004, Brigitte and Cornelis filed an adoption request. In January 2005, they
petitioned to terminate the birth parents’ rights under section 1516.5.
A county adoption worker filed a report with the court in March 2005. It
noted that the guardians were closely bonded to Charlotte and committed to
raising her. She had not seen her mother since 1995, or her father since February
2004. Charlotte was 9 years old, “a very attractive, petite, personable, precocious,
sensitive, articulate child.” She played the violin, participated in the school band,
5
loved to ski, and was taking tennis lessons. Her health was good. In an interview
with the adoptions worker, Charlotte described her father as “scary.” She was
reluctant to relate things he had done, because she worried that he would come
back and do something bad to her. She wanted her grandparents to adopt her
“because they will take better care of me.”
Father was incarcerated, and the adoption worker spoke to him by
telephone. He claimed to have a fantastic relationship with Charlotte, and to have
always provided for her. He said he thought Brigitte had driven his “wife” to
“suicide,” though the worker was aware that Brigitte had recently spoken with
mother. He blamed his drinking problem on his separation from Charlotte.
The report concluded that Charlotte’s best interest would be served by
terminating the parental rights of both parents so that her grandparents could adopt
her. Based on statements from Charlotte and Dr. Yates, the adoption worker
believed that contact with father would not be in Charlotte’s best interest, and
could be detrimental.
In April 2005, the court terminated mother’s parental rights. She had not
appeared, after efforts to locate her failed and notice was served by publication.
The next month, a trial was held on the section 1516.5 petition. Father was
present, represented by counsel. Dr. Yates, Brigitte, and the visitation monitor
testified for the guardians. Father testified on his own behalf, and presented
testimony from his brother and his pastor.
Father’s counsel argued briefly that the investigation of the guardians’
home was inadequate. However, his principal argument was that section 1516.5
unconstitutionally permits the termination of parental rights based solely on the
best interest of the child. The court noted that the facts would not have supported
a finding of abandonment under Family Code section 7822, but declined to hold
section 1516.5 unconstitutional. It terminated father’s parental rights, finding by
clear and convincing evidence that it would be in Charlotte’s best interest to be
adopted by her guardians.
6

The Court of Appeal reversed and remanded for a determination of father’s
parental rights under Kelsey S., supra, 1 Cal.4th 816. If he could carry the burden
of proving a full commitment to his parental responsibilities, the trial court was
directed to deny the section 1516.5 petition, without prejudice to the assertion of
other grounds for terminating father’s parental rights. The Court of Appeal noted
that under Kelsey S., the rights of a natural father who demonstrates sufficient
parental responsibility may not be terminated without a showing of his unfitness as
a parent, which is required as a matter of due process. (Id. at p. 849.) However,
the court rejected the claim that section 1516.5 is facially unconstitutional,
reasoning that it did not violate the rights of unwed fathers who fail to qualify for
protection under Kelsey S. Because the trial court did not consider whether father
had made a full commitment to his parental responsibilities, the Court of Appeal
remanded for further proceedings.
II. DISCUSSION
As we explained in Ann S., supra, __ Cal.4th at pp. __, section 1516.5 is
facially constitutional. The statute applies only when a child has spent at least two
years in a probate guardian’s custody.2 During that time all parental rights and
custodial responsibilities are suspended, with the possible exception of visitation.

2 Section 1516.5 provides in relevant part:
“(a) A proceeding to have a child declared free from the custody and
control of one or both parents may be brought in the guardianship proceeding
pursuant to Part 4 (commencing with Section 7800) of Division 12 of the Family
Code, if all of the following requirements are satisfied:

“(1) One or both parents do not have the legal custody of the child.
“(2) The child has been in the physical custody of the guardian for a period
of not less than two years.

“(3) The court finds that the child would benefit from being adopted by his
or her guardian. In making this determination, the court shall consider all factors
relating to the best interest of the child, including, but not limited to, the nature
and extent of the relationship between all of the following:

“(A) The child and the birth parent.
“(B) The child and the guardian, including family members of the guardian.
“(C) The child and any siblings or half-siblings.”
7


Thus, the due process requirement of a showing of parental unfitness, which
protects a parent’s interest in child custody, is not necessarily applicable at the
time of a section 1516.5 hearing. As a general proposition, parental rights may be
terminated based on the child’s best interest under section 1516.5, subdivision
(a)(3), but parents may challenge the constitutionality of the statute as applied to
them. (Ann S., supra, __ Cal.4th at p. __.)
In this case, the Court of Appeal decided that Kelsey S. barred the
termination of father’s parental rights without a finding of his unfitness, if he
could show his commitment to parental responsibility. The court misconstrued
Kelsey S. Father is in no position to avail himself of the protections extended by
that decision.
In
Kelsey S., we were concerned with the unequal treatment of natural
fathers under the adoption statutes, as compared with mothers and presumed
fathers. (Kelsey S., supra, 1 Cal.4th at pp. 823-825.) We noted that “[t]he child’s
best interest is the sole criterion” for terminating the parental rights of a natural
father. (Id. at p. 824.) On the other hand, “a mother or a presumed father must
consent to an adoption absent a showing by clear and convincing evidence of that
parent’s unfitness.” (Id. at p. 825.) And a mother could prevent a natural father
from receiving the child into his home, depriving him of the status of presumed
father. (Ibid.) We concluded that when a natural father “has sufficiently and
timely demonstrated a full commitment to his parental responsibilities,” this
statutory scheme violated the equal protection and due process clauses of the
federal constitution to the extent it permitted “a mother unilaterally to preclude her
child’s biological father from becoming a presumed father and thereby allowing
the state to terminate his parental rights on nothing more than a showing of the
child’s best interest.” (Id. at p. 849.)
Here, mother did not prevent father from receiving Charlotte into his home.
He lived with Charlotte and mother in Las Vegas, and with Charlotte and his
parents in Camarillo, holding out the child as his own. Therefore, he was qualified
8
to assert his rights as a presumed father. (Fam. Code, § 7611, subd. (d); see
Kelsey S., supra, 1 Cal.4th at p. 825, discussing former Fam. Code, § 7004, subd.
(a)(4).) Furthermore, unlike the statutes under review in Kelsey S., section 1516.5
does not prescribe a different standard for terminating the rights of natural fathers
than it does for mothers or presumed fathers. (See Kelsey S., at pp. 824-825.) For
these reasons, the Kelsey S. holding does not apply in this case.
It is, however, conceivable that a parent faced with the termination of his or
her rights under section 1516.5 would be in a position to assert a due process claim
based on a showing analogous to the one we outlined in Kelsey S. Due process
requires “ ‘some showing of unfitness’ ” before a custodial parent’s rights are
terminated. (Quilloin v. Walcott (1978) 434 U.S. 246, 255; see Ann S., supra, __
Cal.4th at p. __.) In Kelsey S., we extended that protection to the natural father
who lacks custody but “promptly comes forward and demonstrates a full
commitment to his parental responsibilities — emotional, financial, and
otherwise.” (Kelsey S., supra, 1 Cal.4th at p. 849.) “In particular, the father must
demonstrate ‘a willingness himself to assume full custody of the child — not
merely to block adoption by others.’ [Citation.] A court should also consider the
father’s public acknowledgement of paternity, payment of pregnancy and birth
expenses commensurate with his ability to do so, and prompt legal action to seek
custody of the child.” (Ibid.)
It seems unlikely that a court would find it in a child’s best interest under
section 1516.5 to terminate the rights of a fully committed, responsible, and
capable parent who finds an extended probate guardianship unavoidable under
exigent circumstances. Nevertheless, factors similar to those set out in Kelsey S.
for evaluating commitment to parental responsibility might support a parent’s
claim that the best interest of the child standard is unconstitutional as applied to
him or her.
This is not such a case. Indeed, father has not asserted that his parental
performance entitles him to special consideration under the due process clause,
9
either in the trial court, the Court of Appeal, or here. The undisputed facts in the
record show that he fell far short of the level of parental commitment
contemplated in Kelsey S. Father manifestly failed to fulfill his parental
responsibilities and did not promptly defend his custodial rights. To the contrary,
he abandoned his responsibilities and formally waived his parental rights when the
guardianship was established. Although he was living with Charlotte in his
parents’ home, and was evidently employed, he yielded custody to his parents as
guardians and further agreed to give up his statutory parental preference in any
future custody proceeding.3 These facts alone would preclude father from
establishing a full commitment to parental responsibility.
3
The Nevada court ordered father to pay child support “based upon [his]
current employment.” At the section 1516.5 hearing, father testified that although
he “might have been between a couple jobs here and there” when living with his
parents, he was a machinist and earned between $40,000 and $80,000 a year.

The stipulated order establishing the guardianship includes the following
provision: “The parties acknowledge that under NRS [Nevada Revised Statutes]
125.500, third parties must demonstrate that the care of a parent is detrimental to a
child in order to gain custody of that child over the desires [of] a parent for the
custody of the child. Ronald [the father] and Linda [the mother] hereby forever
waive any right to apply the standard set forth in NRS 125.500 to the care and
custody of Charlotte by the Plaintiffs [the guardians]. All parties acknowledge
and agree that in all present and future custody proceeding[s] in this or any other
forum in which Ronald and or Linda seek to gain custody or visitation of Charlotte
while Charlotte is in the care of plaintiffs, the sole consideration of the court shall
be the best interests of the minor child, and Plaintiffs will not be required to
demonstrate that visitation with Ronald or Linda would be detrimental to the child,
as set forth in NRS 125.500. Further, Ronald and Linda hereby waive any
preference or right to custody of Charlotte based upon their status as parents of
Charlotte.”

The Nevada statute granting parents preference in custody determinations is
similar to Family Code section 3041, subdivision (a). “Before the court makes an
order awarding custody to any person other than a parent, without the consent of
the parents, it shall make a finding that an award of custody to a parent would be
detrimental to the child and the award to a nonparent is required to serve the best
interest of the child.” (Nev.Rev.Stat. § 125.500.)
10



Father’s subsequent conduct only confirmed his irresponsibility as a parent.
He failed to make child support payments, behaved inappropriately and even
cruelly to Charlotte and to both of his parents, abused his visitation rights, and
persistently engaged in criminal behavior. Accordingly, the Court of Appeal erred
not only by deeming Kelsey S. applicable in this case, but also by remanding for
further proceedings when father’s inability to demonstrate a commitment to
parental responsibility was thoroughly demonstrated at the section 1516.5 hearing.
III. DISPOSITION
We reverse the judgment of the Court of Appeal.
CORRIGAN, J.

WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
11


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

Name of Opinion In re Charlotte D.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 137 Cal.App.4th 1222
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S142028
Date Filed: March 19, 2009
__________________________________________________________________________________

Court:

Superior
County: Ventura
Judge: Charles W. Campbell, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Richard C. Gilman, under appointment by the Supreme Court, for Objector and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Douglas R. Donnelly; John L. Dodd & Associates and John L. Dodd for Petitioners and Respondents.

No appearance for Minor.

Robert R. Walmsley, Ted R. Youmans and Elizabeth A. Christopher for Academy of California Adoption
Lawyers and Academy of California Family Formation Lawyers as Amici Curiae on behalf of Petitioners
and Respondents and Minor.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard C. Gilman
P. O. Box 5524
Oxnard, CA 93031
(805) 981-7907

John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA 92780
(714) 731-5572


Petition for review after the Court of Appeal reversed an order terminating parental rights. This case presents the following issue: Is Probate Code section 1516.5, which permits the termination of parental rights without an express finding of parental unfitness, unconstitutional either on its face or as applied to an unwed father who has demonstrated a full commitment to his parental responsibilities?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 03/19/200945 Cal. 4th 1140, 202 P.3d 1109, 90 Cal. Rptr. 3d 724S142028Review - Civil Appealclosed; remittitur issued

S. (ANN), GUARDIANSHIP OF (S143723)
S. (KELSEY), ADOPTION OF (S014775)


Parties
1D., Cornelius (Petitioner and Respondent)
Represented by John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA

2D., Cornelius (Petitioner and Respondent)
Represented by Douglas R. Donnelly
Attorney at Law
427 East Carrillo Street
Santa Barbara, CA

3D., Brigitte (Petitioner and Respondent)
Represented by John L. Dodd
John L. Dodd and Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA

4D., Brigitte (Petitioner and Respondent)
Represented by Douglas R. Donnelly
Attorney at Law
427 East Carrillo Street
Santa Barbara, CA

5D., Ronald (Objector and Appellant)
Represented by Richard C. Gilman
Attorney at Law
P.O. Box 5524
365 Esplanade Drive, Suite 203
Oxnard, CA

6D., Charlotte (Overview party)
7Academy Of California Adoption Lawyers (Amicus curiae)
Represented by Ted R. Youmans
Van Deusen Youmans et al
615 Civic Ctr Dr W #300
Santa Ana, CA


Opinion Authors
OpinionJustice Carol A. Corrigan

Disposition
Mar 19 2009Opinion: Reversed

Dockets
Mar 21 2006Petition for review filed
  Cornelius D., et al., Respondents by John L. Dodd, Counsel
Mar 21 2006Record requested
 
Mar 22 2006Received Court of Appeal record
  one doghouse
Apr 25 2006Received:
  letter dated April 24, 2006, re: case cited in Petition for Review. Cornelius D., et al., respondents by John L. Dodd, counsel
May 11 2006Time extended to grant or deny review
  to and including June 19, 2006.
May 24 2006Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
May 30 2006Certification of interested entities or persons filed
  by Richard C. Gilman, counsel for appellant
Jun 1 2006Certification of interested entities or persons filed
  by John L. Dodd, counsel for respondent
Jun 14 2006Certification of interested entities or persons filed
  Douglas R. Donnelly attorney for respondent Cornelius D.
Jun 19 2006Request for extension of time filed
  to July 23, 2006 to file responden'ts (Cornelius D. and Bridgette D.) opening brief on the merits. by John L. Dodd, counsel
Jun 22 2006Extension of time granted
  to July 23, 2006 to file respondent's opening brief on the merits.
Jul 26 2006Opening brief on the merits filed
  Cornelis and Brigitte D., respondents John L. Dodd, counsel crc 40.1(b)
Jul 28 2006Request for extension of time filed
  to September 23, 2006 to file objector and appellant (Ronald D.) responding brief on the merits. by Richard C. Gilman, counsel
Aug 1 2006Extension of time granted
  to September 23, 2006 to file appellant's responding brief on the merits.
Sep 21 2006Answer brief on the merits filed
  Appellant Ronald D. Attorney Richard C. Gilman
Sep 22 2006Counsel appointment order filed
  Richard C. Gilman is hereby appointed to represent appellant on the appeal now pending in this court.
Oct 3 2006Reply brief filed (case fully briefed)
  Cornelis and Brigitte D., respondents by John L. Dodd, counsel
Oct 25 2006Compensation awarded counsel
  Atty Gilman
Nov 3 2006Received application to file Amicus Curiae Brief
  Academy of California Adoption Lawyers/ Academy of California Family Formation Lawyers [in support of resps & minor] Attorneys Ted R. Youmans, Robt. R. Walmsley & Elizabeth A. Christopher
Nov 13 2006Permission to file amicus curiae brief granted
  Academy of California Adoption Lawyers/ Academy of California Family Formation Lawyers in support of respondents.
Nov 13 2006Amicus curiae brief filed
  Acadent if California Adoption Lawyers/ Academy of California Family Formation Lawyers in support of respondent, answer due within twenty days.
Mar 23 2007Received:
  letter dated March 15, 2007 from John L. Dodd & Associates.
Dec 10 2008Case ordered on calendar
  to be argued on Thursday, January 8, 2009, at 9:00 a.m., in San Francisco
Jan 8 2009Cause argued and submitted
 
Feb 11 2009Compensation awarded counsel
  Atty Gilman
Mar 18 2009Notice of forthcoming opinion posted
 
Mar 19 2009Opinion filed: Judgment reversed
  We reverse the judgment of the Court of Appeal. Opinion by: Corrigan, J. -----joined by George, C.J., Kennard, J., Baxter, J., Werdegar, J., Chin & Moreno, JJ.
Apr 21 2009Remittitur issued
 
Apr 27 2009Received:
  receipt for remittitur CA 2/6

Briefs
Jul 26 2006Opening brief on the merits filed
 
Sep 21 2006Answer brief on the merits filed
 
Oct 3 2006Reply brief filed (case fully briefed)
 
Nov 13 2006Amicus curiae brief filed
 
Brief Downloads
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May 3, 2010
Annotated by amromero

Facts:

Charlotte D. is a child born in 1995 to unwed parents with drug and alcohol problems. She has lived with her paternal grandparents since at least 1996. In 1999, her parents agreed to waive their statutory rights to parental preference in future custody proceedings and Charlotte’s paternal grandparents became her legal guardians. The mother never exercised visitation rights and has not seen Charlotte since 1995. The father has drug and alcohol problems, has been arrested multiple times, and incarcerated at least three times. In 2002, the father struck Charlotte’s paternal grandfather with a car and broke his leg. Shortly thereafter, the father sought custody of Charlotte, but the court ordered that the grandparents retain sole custody. The father began supervised visitations, but these ended quickly because of the father’s frightening and inappropriate behavior with Charlotte and the visitation monitor.

In late 2004, the grandparents filed an adoption request, and, several months later, they also filed a petition to terminate the birth parents’ rights under California Probate Code section 1516.5. The adoption worker concluded that terminating both Charlotte’s parents’ rights and allowing her grandparents to adopt her would be in Charlotte’s best interest. The adoption worker also concluded that further contact with her father would not be in Charlotte’s best interest and could be detrimental. The father contested the termination of his parental rights, claiming that section 1516.5 unconstitutionally permits termination of parental rights based solely on the best interest of the child. The Superior Court disagreed and terminated both parents’ rights, finding that it would be in Charlotte’s best interest to be adopted by her grandparents.

Procedural Posture:

The Superior Court of Ventura County found that section 1516.5 was constitutional. In light of clear and convincing evidence that adoption was in Charlotte’s best interests, the Superior Court terminated the father’s parental rights. The California Court of Appeal reversed and remanded for a determination of the father’s parental rights under Adoption of Kelsey S., 1 Cal.4th 816 (1992) (Kelsey S.). The Court of Appeal rejected the claim that section 1516.5 is facially unconstitutional, but held the statute was unconstitutional as applied to unwed fathers. If the father could fulfill the burden of proving full commitment to his parental responsibilities, the Superior Court was directed to deny the section 1516.5 petition.

Holding:

Probate Code section 1516.5 is not facially unconstitutional because it adopts the best interest of the child as the standard for terminating parental rights. Furthermore, section 1516.5 applies to a unwed father no differently than to any other parent, therefore applying section 1516.5 to Charlotte’s father does not violate his right to equal protection.

Analysis:

When a guardian seeks to adopt a child, California Probate Code section 1516.5 allows for termination of parental rights based on the child’s best interest after two years of probate guardianship. The Court discussed Kelsey S., which held that due process requires a finding of parental unfitness before an unwed father may be deprived of his parental rights. The Court then distinguished Charlotte D.’s father from the unwed father in Kelsey S. because Charlotte D.’s had the rights of a presumed father and had expressly waived them when the grandparents became her guardian. Furthermore, the Court found that section 1516.5 does not prescribe a different standard for terminating the rights of natural fathers than it does for mothers or presumed fathers.

The Court went on to note that the due process requirement of a showing of parental unfitness is not necessarily applicable at the time of a section 1516.5 hearing because all parental rights and custodial responsibilities had been suspended since the guardianship took effect. Although the Court found section 1516.5 constitutional on its face, it acknowledged that parents may challenge the constitutionality of the statute as applied to them. In particular, the protections of Kelsey S. extend to a natural father without custody who promptly comes forward and demonstrates a full commitment to his parental responsibilities, including emotional and financial duties. Under Kelsey S., the father would have to demonstrate a willingness to assume full custody of the child, but the court could also consider whether the father had publicly acknowledged paternity, whether he had paid pregnancy and birth expenses, and whether he had taken prompt legal action to seek custody of the child.

The Court applied the Kelsey S. due process evaluation to Charlotte D.’s father and found that the evidence presented at the section 1516.5 hearing “overwhelmingly established that the father was anything but a fully responsible parent.” Additionally, the father had formally waived his parental rights when he yielded custody to the grandparents. The father’s behavior after the guardianship began only confirmed his irresponsibility as a parent. The appellate court had erred both in applying Kelsey S. to Charlotte D.’s father and in remanding the case because the evidence thoroughly proved the father’s inability to show his commitment as a responsible parent.

Issue Tags:

adoption, best interests, child, child’s best interest, consent, constitutional, custodial, custody, detrimental, domestic violence, due process, equal protection, facially, family, father’s parental rights, felony, grandfather, grandmother, grandparent, guardian, guardianship, infant, jail, juvenile, monitor, natural father, natural mother, parental, parental responsibilities, parental unfitness, presumed father, probate, Probate Code, relinquishment, removal, Section 1516.5, terminated, terminating, termination, unfitness, visitation, waive, waived

Annotation Author: Ashley Romero