Guardianship of ANN S., a Minor.
A.B. et al.,
Objector and Appellant.
Super. Ct. Nos.
PG01254 & SA0241
In 2003 the Legislature enacted Probate Code section 1516.5, making it
easier for children in probate guardianships to be adopted by their guardians.
(Stats. 2003, ch. 251, § 11; hereafter, section 1516.5.)1 Section 1516.5 authorizes
the termination of parental rights when the guardianship has continued for at least
two years, and the court finds that adoption by the guardian would be in the child’s
best interest. In this case, a mother whose rights were terminated under section
1516.5 contends the statute is unconstitutional on its face because it allows the
fundamental rights of parenthood to be extinguished without a showing that the
parent is currently unfit, or that termination of parental rights is the alternative
least detrimental to the child.
The statute 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.)
We hold that section 1516.5 is facially constitutional. Generally, due
process requires some showing of parental unfitness before rights are terminated,
to protect the parent’s fundamental interest in child custody. However, it is settled
that a showing of current unfitness is not always necessary when a court
terminates parental rights. Section 1516.5 applies to parents whose custody rights
have been suspended during a probate guardianship. A termination proceeding
under this statute occurs only when the parent has failed to exercise any custodial
responsibility for a two-year period, with the possible exception of visitation. In
this context, it would make little sense to require a showing that the parent is
currently unfit. As guardianship continues for an extended period, the child
develops an interest in a stable, continuing placement, and the guardian acquires a
recognized interest in the care and custody of the child. Section 1516.5
appropriately requires the court to balance all the familial interests in deciding
what is best for the child. The “least detrimental alternative” standard invoked by
mother is effectively included in the determination of the child’s best interest.
Mother also claims it was improper to apply section 1516.5 retroactively in
this case, because she had relied on preexisting law governing the termination of
parental rights when she agreed to place her child in guardianship, two years
before the statute was enacted. We conclude that in the circumstances of this case,
the trial court’s application of section 1516.5 was consistent with due process and
with the transitional provisions of Probate Code section 3, subdivision (h). As we
explain, trial courts have discretion to determine on a case-by-case basis whether
to apply section 1516.5 to a guardianship in existence on its effective date.
Ann S. was born in March 2000. Mother was a heroin addict with a
lengthy criminal record. Ann’s father was also a drug user. The parents’
relationship was unstable. In October and December 2000, father’s sister and her
husband, respondents A.B. and T.B., cared for Ann while mother was in
rehabilitation programs. In September 2001, mother threatened suicide and the
police found Ann in mother’s apartment, with other drug users. Father briefly
assumed custody but quickly proved incapable of caring for Ann. The B.’s
applied for guardianship.
In October 2001, mother stipulated to a temporary guardianship without
visitation, and agreed to enroll in a rehabilitation program. In December, both
parents consented to a permanent guardianship, without visitation for mother.
Mother continued using drugs. In April 2002, she pleaded guilty to a theft charge
and received a 32-month prison sentence.
Before she negotiated the guilty plea, mother considered allowing the B.’s
to adopt Ann, motivated by the possibility that she would be charged with a third
strike and sentenced to a lengthy term. However, after the charges were resolved,
she refused to consent to an adoption. The B.’s filed an adoption petition in May
2002. Mother objected in a letter from prison to the trial court in July. Father
filed his consent several months later. In January 2003, the B.’s sought to
terminate mother’s parental rights on the grounds of abandonment (Fam. Code,
§ 7822) and conviction of a felony demonstrating parental unfitness (Fam. Code,
A probation officer prepared a social report for the court. The officer had
interviewed mother, who claimed the B.’s thwarted her attempts to maintain
contact with Ann while mother was incarcerated. Mother wanted her family to
“remain intact.” Ann’s half siblings, ages 15 and 5, were in a long-term
guardianship with mother’s sister. Mother said that child protective services was
not pursuing adoption of those children because of her bond with them. She
planned to enroll in a drug treatment program upon her release from prison, and
said she had completed parenting and anger management programs.
The officer also interviewed T.B., the prospective adoptive mother. She
and A.B. had been married for almost 20 years. She owned a hair salon, and he
worked as a warehouseman. She reported that her brother (Ann’s father) was
currently in custody due to his drug use. T.B. said that while she was “initially
very supportive” of mother, she had no choice but to take custody of Ann because
of mother’s continued drug use, arrests, and failures in rehabilitation programs.
T.B. was concerned about Ann’s well-being and the stress caused by the
uncertainty of the current situation.
The report concluded that while mother’s criminal history alone did not
necessarily make her a bad parent, her continued substance abuse was a significant
issue. Ann appeared to be thriving in the B.’s nurturing environment. The officer
recommended termination of mother’s parental rights. However, the court
rejected that recommendation. Relying on In re Jacklyn F. (2003) 114
Cal.App.4th 747, it found that mother could not be deemed to have abandoned
Ann because she had been deprived of custody by judicial decree. It also
concluded that mother’s criminal record was insufficient to establish her unfitness
to assume custody in the future.
In February 2004, the same month the court issued its decision, mother was
released from prison and entered a drug treatment program. Shortly thereafter, the
B.’s filed a new petition to terminate her parental rights under section 1516.5,
which took effect on January 1, 2004. (Stats. 2003, ch. 251, § 11.) They alleged
that they had been Ann’s guardians since December 2001, that their adoption
petition was pending, and that adoption was in the child’s best interest.
In response, mother contended that section 1516.5 unconstitutionally
interferes with parents’ substantive due process right to the care, custody, and
control of their children; that the statute should not be applied to her retroactively;
and that removal from her custody and control would not be in Ann’s best interest.
The court received two reports on the matter. An adoption study conducted
by a social worker in July 2004 concluded it would be “extremely detrimental” to
Ann if she were not permanently placed with the B.’s. Ann was a friendly, normal
four-year-old child who called the B.’s “Mama” and “Papa.” Their home was
large and comfortable. Ann had no relationship with her biological parents and
little contact with her half siblings. The B.’s were open to visitation with the half
siblings once the adoption was finalized.
The same conclusion was reached by a licensed family therapist who
submitted a report in March 2005. Ann was fully bonded to the B.’s, after a
“painful separation” from mother at the age of 17 months. She was developing
appropriately and about to begin kindergarten. A major change in her primary
attachments would be stressful, and adoption by the B.’s would be in her best
interest. The therapist recommended no visitation with mother and the half
siblings until Ann was at least 12 years old. At that point, if Ann demonstrated a
consistent interest or need to meet them, and mother and the half siblings were
properly prepared with reunification counseling, visitation might be undertaken.
The therapist noted that mother had never completed a full course of residential
drug treatment, and was living with her sister. She did “appear to be trying to turn
her life around” and claimed to be meeting her parole requirements. She had not
seen Ann for over three years.
The court heard testimony from the therapist as well as from T.B., one half
sibling, and mother. It found that the evidence supported the findings and
conclusions of the social worker and the therapist. It noted that mother was “not
in a position to take custody of the minor and could not say when she would be in
a position to take custody.” She sought only visitation, but there was
“uncontroverted evidence” that visitation was not in Ann’s best interest. Finding
by clear and convincing evidence that adoption by the B.’s would be in Ann’s best
interest, the court terminated mother’s parental rights.
The Court of Appeal affirmed, rejecting mother’s constitutional claims and
her argument that section 1516.5 should not be applied to her retroactively. We
A brief review of probate guardianship is in order. This custodial
arrangement originated in the law governing the administration of decedents’
estates, but it has not been restricted to orphans. Long before the advent of the
dependency statutes, probate guardianships were instituted when “conditions
[were] shown to be such, by reason of the mental and moral limitations or
delinquency of parents, that to allow the child to continue in their custody would
be to endanger [the child’s] permanent welfare.” (In re Imperatrice (1920) 182
Cal. 355, 358.)2 In such cases, courts recognized that the “right of the parent [to
custody] must give way, its preservation being of less importance than the health,
safety, morals, and general welfare of the child.” (Imperatrice, at p. 358.)
After the passage of the juvenile dependency statutes, probate
guardianships have continued to provide an alternative placement for children who
cannot safely remain with their parents. (See Weisz & McCormick, supra, 12
S.Cal. Rev.L. & Women’s Stud. at pp. 195-196.) The differences between probate
guardianships and dependency proceedings are significant. (Id. at pp. 195-197.)
Probate guardianships are not initiated by the state, but by private parties, typically
family members. They do not entail proof of specific statutory grounds
demonstrating substantial risk of harm to the child, as is required in dependency
proceedings. (See Welf. & Inst. Code, § 300; Guardianship of Stephen G. (1995)
40 Cal.App.4th 1418, 1429-1430.) Unlike dependency cases, they are not
regularly supervised by the court and a social services agency. No governmental
entity is a party to the proceedings. It is the family members and the guardians
who determine, with court approval, whether a guardianship is established, and
See also In re Lundberg (1904) 143 Cal. 402, 411; In re Vance (1891) 92
Cal. 195, 198; Weisz & McCormick, Abandon Probate Court for Abandoned
Children: Combining Probate Guardianship of the Person and Dependency into
One Stronger, Fairer Children’s Court (2003) 12 S.Cal. Rev.L. & Women’s Stud.
191, 194-195 (hereafter Weisz & McCormick).
thereafter whether parent and child will be reunited, or the guardianship continued,
or an adoption sought under section 1516.5.
“A relative or other person on behalf of the minor, or the minor if 12 years
of age or older, may file a petition for the appointment of a guardian.” (Prob.
Code, § 1510, subd. (a).) The probate court may appoint a guardian “if it appears
necessary or convenient.” (Prob. Code, § 1514, subd. (a).)3 An investigation into
the circumstances of the proposed guardianship may be conducted, though the
court may waive the investigation. (Prob. Code, § 1513, subd. (a).)4 A probate
guardianship is often established with parental consent, as in this case. (See, e.g.,
In re Charlotte D. (Mar. 19, 2009, S142028) __ Cal.4th __; Guardianship of L.V.
(2006) 136 Cal.App.4th 481, 485; Guardianship of Kassandra H. (1998) 64
Cal.App.4th 1228, 1237; Guardianship of M.S.W. (1982) 136 Cal.App.3d 708,
710.) A parent who objects to guardianship is entitled to notice and a hearing.
(Prob. Code, § 1511.)
Early authorities held that in contested guardianship cases, parents were
entitled to retain custody unless affirmatively found unfit. (14 Witkin, Summary
of Cal. Law (10th ed. 2005) Wills and Probate, § 928, pp. 1031-1032, citing
cases.) However, the unfitness standard fell out of favor and the best interest of
the child, as determined under the custody statutes, became the controlling
consideration. (In re B.G. (1974) 11 Cal.3d 679, 694-698; Guardianship of
Marino (1973) 30 Cal.App.3d 952, 957-958.) The Probate Code now specifies
The Probate Code also includes provisions for temporary guardianship
pending the appointment of a permanent guardian, or during a suspension of the
guardian’s powers. (Prob. Code, § 2250 et seq.)
The statute contemplates a referral to the county social services agency if
an investigation uncovers allegations of parental unfitness. (Prob. Code, § 1513,
subd. (c).) But the circumstances of this case, and the legislative history of section
1516.5 (see pt. II.B., post), suggest that this requirement does not always lead to
the involvement of the county. (See Weisz & McCormick, supra, 12 S.Cal.
Rev.L. & Women’s Stud. at pp. 202-203.)
that the appointment of a guardian is governed by the Family Code chapters
beginning with sections 3020 and 3040. (Prob. Code, § 1514, subd. (b).)
Family Code section 3020, subdivision (a) declares that “the health, safety,
and welfare of children shall be the court’s primary concern in determining the
best interest of children when making any orders regarding the physical or legal
custody or visitation of children.” Under Family Code section 3040, subdivision
(a), parents are first in the order of preference for a grant of custody, but “the court
and the family” are allowed “the widest discretion to choose a parenting plan that
is in the best interest of the child.” (Fam. Code, § 3040, subd. (b).) Before
granting custody to a nonparent over parental objection, the court must find “clear
and convincing evidence” that “granting custody to a parent would be detrimental
to the child and that granting custody to the nonparent is required to serve the best
interest of the child.” (Fam. Code, § 3041, subds. (a) & (b).)
In 2002, the Legislature added subdivisions to Family Code section 3041
emphasizing the importance of a stable home environment for the child.
(Stats.2002, ch. 1118, § 3.) It specified that “ ‘detriment to the child’ includes the
harm of removal from a stable placement of a child with a person who has
assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the
child’s physical needs and the child’s psychological needs for care and affection,
and who has assumed that role for a substantial period of time. A finding of
detriment does not require any finding of unfitness of the parents.” (Fam. Code, §
3041, subd. (c).) And, “if the court finds by a preponderance of the evidence that
the person to whom custody may be given is a person described in subdivision (c),
this finding shall constitute a finding that the custody is in the best interest of the
child and that parental custody would be detrimental to the child absent a showing
by a preponderance of the evidence to the contrary.” (Fam. Code, § 3041, subd.
(d).) Thus, the Legislature has determined that the critical finding of detriment to
the child does not necessarily turn on parental unfitness. It may be based on the
prospect that a successful, established custodial arrangement would be disrupted.
(See Guardianship of L.V., supra, 136 Cal.App.4th at p. 491.)
When the court appoints a guardian, the authority of the parent “ceases.”
(Fam. Code, § 7505, subd. (a).) The court has discretion to grant visitation
(Guardianship of Martha M. (1988) 204 Cal.App.3d 909, 911), but otherwise
parental rights are completely suspended for the duration of a probate
guardianship (Guardianship of Stephen G., supra, 40 Cal.App.4th at p. 1426).
The guardian assumes the care, custody, and control of the child. (Prob. Code, §
2351, subd. (a).) There is no periodic court review of the placement, as there is in
dependency proceedings. (Stephen G., at p. 1429.) Nor is the parent given the
reunification services that the county provides to parents of dependent children.
(Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 1430-1432.)
Unless ended by court order, the guardianship continues until the child
“attains majority or dies.” (Prob. Code, § 1600, subd. (a).) The court may
terminate the guardianship on a petition by the guardian, a parent, or the child,
based on the child’s best interest. (Prob. Code, § 1601.) The fitness of the parent
to assume custody is not a controlling consideration. (Guardianship of L.V.,
supra, 136 Cal.App.4th at pp. 488-491.)
Section 1516.5 authorizes the termination of parental rights after two years
of probate guardianship, if adoption by the guardian is in the child’s best interest.5
5 Section 1516.5 provides:
“(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
An analysis prepared by Senate Judiciary Committee staff notes that under
preexisting law, a guardian seeking to adopt without the consent of the child’s
parents was required to proceed under the provisions of Family Code section 7822
et seq.6 (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 182 (2003-2004 Reg.
Sess.) as amended Mar. 26, 2003, pp. 7-8.) The analysis explains: “This bill
would create yet another avenue for a guardian where the child has been in the
custody of the guardian for a long time and the parent or parents are not likely to
reclaim the child but the parent or parents do not fall under one of the categories
covered by existing law.
“The situation that this bill intends to cover, for example, is where one
parent cannot be found, and the other voluntarily gave the child to the guardian in
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.
“(b) The court shall appoint a court investigator or other qualified
professional to investigate all factors enumerated in subdivision (a). The findings
of the investigator or professional regarding those issues shall be included in the
written report required pursuant to Section 7851 of the Family Code.
“(c) The rights of the parent, including the rights to notice and counsel
provided in Part 4 (commencing with Section 7800) of Division 12 of the Family
Code, shall apply to actions brought pursuant to this section.
“(d) This section does not apply to any child who is a dependent of the
juvenile court or to any Indian child.”
6 The Family Code grounds for terminating parental rights may briefly be
described as follows: abandonment (Fam. Code, § 7822); neglect or cruel
treatment, and a year of removal from parental custody under juvenile court
jurisdiction (§ 7823); disability due to substance abuse or moral depravity, and a
year of removal from parental custody under juvenile court jurisdiction (§ 7824);
conviction of a felony demonstrating parental unfitness (§ 7825); developmental
disability, mental illness, or mental disability resulting in parental unfitness
(§§ 7826 & 7827); a year of out-of-home placement, failure to attain parental
fitness, and likely failure to do so in the future (§ 7828); a juvenile court finding
that reunification services shall not be provided to the parents of a dependent child
a written guardianship agreement that may or may not have been entered in a
formal court proceeding. Years later it became apparent that the child has
bonded with the guardians as parents, but since the birth parents visited
occasionally, abandonment could not be established. Another example given by
the sponsor is where a drug addicted mother gives the child in guardianship,
hoping to get herself rehabilitated but repeatedly fail[s], creating a situation where
the child is in the custody of the guardian for years without being in the foster care
system. The sponsor contends that in either case, a guardian should be able to
adopt the child without having to obtain consent or prove neglect, abandonment,
or the mental disorder or mental illness of the parent who gave them [sic]
guardianship in the first place.
“Given the other avenues left available, the sponsor believes that creating
this new provision applicable only under the limited circumstances would allow a
child to remain in and be adopted into a loving home in which he or she has been
living. Adoption would take away any fear that someday his or her birth parent or
parents would come back to reclaim him or her.” (Sen. Com., Analysis of Sen.
Bill No. 182, supra, at pp. 8-9.)
The committee analysis summarized the intent of the proposed legislation
as follows: “to institute a new procedure for the court to terminate parental rights
when a child has been in the custody of a guardian for at least two years but there
is no basis for the termination of parental rights except that it would be in the best
interest of the child to be adopted by the guardian.” (Sen. Com., Analysis of Sen.
Bill No. 182, supra, at p. 4.) 8 The experience of the parties here demonstrates the
7 The reference in this committee analysis to a guardianship agreement not
formalized in a court proceeding does not mean that section 1516.5 applies even if
the probate court has not instituted a guardianship. California law does not
recognize “informal” guardianship. A petition under section 1516.5 may be
brought only in a “guardianship proceeding.” (§ 1516.5, subd. (a).)
Mother notes that a Senate floor analysis includes the observation:
“There are some constitutional problems with this procedure that may be curable.”
effect of the new procedure. The B.’s were unable to adopt Ann under former law
requiring a showing of parental unfitness. Section 1516.5, however, allowed the
court to terminate mother’s parental rights based on Ann’s best interest.
Mother raises a facial challenge to the constitutionality of section 1516.5.
She does not contend the statute is invalid based on any aspect of her particular
circumstances, except in her retroactivity argument. (See pt. II.D., post.) The
standard governing facial challenges has been a matter of some debate, within
both this court and the United States Supreme Court. (See, e.g., Zuckerman v.
State Bd. of Chiropractic Examiners (2002) 29 Cal.4th 32, 39, and cases cited
therein; United States v. Booker (2005) 543 U.S. 220, 276, fn. 1 (dis. opn. of
Stevens, J.); Kolender v. Lawson (1983) 461 U.S. 352, 358, fn. 8.) Here, mother
claims section 1516.5 is unconstitutional in all cases. Thus, she attempts to meet
the strictest requirement for establishing facial unconstitutionality, asserting that
the statute “inevitably pose[s] a present total and fatal conflict with applicable
constitutional prohibitions.” (Pacific Legal Foundation v. Brown (1981) 29
Cal.3d 168, 181.)
We hold that the statute passes muster, not only under the strictest test but
also under the more lenient standard sometimes applied: mother fails to establish
that section 1516.5 conflicts with due process “in the generality or great majority
of cases.” (San Remo Hotel v. City and County of San Francisco (2002) 27
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading, analysis of Sen. Bill
No. 182 (2003-2004 Reg. Sess.) as amended Apr. 8, 2003, p. 4.) The problems
were not those raised by mother in her constitutional challenge, however. The
remark to which she refers is also found in the Senate committee analysis quoted
above, with a reference to further discussion in a comment. (Sen. Com., Analysis
of Sen. Bill No. 182, supra, at p. 4.) That comment expresses concern over legal
representation for the parents whose rights are subject to termination, and queries
whether they should be given appointed counsel. (Id. at p. 8.) As enacted, section
1516.5, subdivision (c) incorporates the provisions for appointment of counsel in
Family Code sections 7860 et seq.
Cal.4th 643, 673; see also, e.g., Zuckerman v. State Bd. of Chiropractic
Examiners, supra, 29 Cal.4th at p. 46; Chicago v. Morales (1999) 527 U.S. 41, 55,
fn. 22 (plur. opn. of Stevens, J.).)
Mother argues that section 1516.5 is unconstitutional because it permits the
termination of parental rights based only on the child’s best interest. She contends
due process requires a showing by clear and convincing evidence that the parent is
presently unfit, or that terminating parental rights is the least detrimental
alternative for the child. Her claims are based on a parent’s fundamental interest
in “the companionship, care, custody, and management of his or her children.”
(Stanley v. Illinois (1972) 405 U.S. 645, 651; see also In re B.G., supra, 11 Cal.3d
at p. 688.) It is noteworthy, however, that while mother invokes the due process
protections courts have developed to protect this interest, she is not seeking to
obtain the interest here. Neither she nor any other parent in a section 1516.5
proceeding has or stands to gain the companionship, care, custody, or management
of the child. If mother defeats the effort to terminate her parental rights, the
guardianship continues and those rights remain in a state of suspension.
The only aspect of mother’s challenge that requires extended discussion is
the parental unfitness criterion. Regarding the standard of proof, mother does not
dispute that clear and convincing evidence is required by statute for the findings
specified in section 1516.5.9 It is the nature of those findings to which she
objects. Similarly, while mother insists that an order terminating parental rights
must be based on present circumstances, there is no question that section 1516.5
A proceeding to terminate parental rights under section 1516.5 is
“brought in the guardianship proceeding pursuant to Part 4 (commencing with
Section 7800) of Division 12 of the Family Code.” (§ 1516.5, subd. (a).) “The
rights of the parent . . . provided in Part 4 (commencing with Section 7800) of
Division 12 of the Family Code, shall apply.” (§ 1516.5, subd. (c).) Family Code
section 7821 requires findings to be supported by clear and convincing evidence,
except as otherwise provided. No exception applies to section 1516.5
proceedings. Thus, the clear and convincing evidence standard governs the
court’s findings, as the trial court in this case recognized.
requires the court to consider the current situation of the child, the guardians, and
the parent. Mother’s quarrel is with the kind of circumstances the court is directed
The “least detrimental alternative” formulation advocated by mother also
collapses upon examination. “[T]he least detrimental alternative standard is but a
‘more precise formulation’ of the best interest of the child standard.” (In re Rico
W. (1986) 179 Cal.App.3d 1169, 1176; see also, e.g., Adoption of Michael D.
(1989) 209 Cal.App.3d 122, 134, superseded by statute on another point, as noted
in In re Mario C. (1990) 226 Cal.App.3d 599, 606.) Some courts have favored
this alternative as a way to focus attention on current circumstances, and prevent
speculation about possible future events that might tend to subordinate the child’s
interests to those of adult claimants. (Adoption of Michelle T. (1975) 44
Cal.App.3d 699, 708; see In re Angelia P. (1981) 28 Cal.3d 908, 917.) However,
the “least detrimental alternative” has never supplanted the best interest of the
child standard. In any event, whichever alternative the court deems “least
detrimental” for the child at a section 1516.5 hearing will necessarily be the
alternative that would serve the child’s best interest.10
Mother attempts to link the “least detrimental alternative” standard with
parental unfitness, relying on In re Carmaleta B. (1978) 21 Cal.3d 482, a case
arising under the dependency statutes. But the Carmaleta B. court made a point of
distinguishing parental unfitness from detriment to the child. (Id. at p. 489; see
also In re B.G., supra, 11 Cal.3d at pp. 698-699.) Moreover, the court discussed
10 Although the finding required by section 1516.5, subdivision (a)(3) is
simply that “the child would benefit from being adopted by his or her guardian,”
there is no doubt that this requires a determination of the child’s best interest. It
would be absurd for the court to conclude that any benefit from adoption would be
sufficient, regardless of competing considerations. “Benefit” in this context means
that adoption would be the best alternative for the child, as is clear from the
Legislature’s specification that “[i]n making this determination, the court shall
consider all factors relating to the best interest of the child . . . .” (§ 1516.5, subd.
statutory grounds of parental unfitness, without elevating them to constitutional
requirements. (Carmaleta B., at pp. 490-495.)
The gravamen of mother’s claims is that section 1516.5 violates due
process by failing to require a finding of parental unfitness before the court frees a
child for adoption. It is settled, however, that such a finding is not an invariable
constitutional requirement when parental rights are terminated. Quilloin v.
Walcott (1978) 434 U.S. 246 (Quilloin) establishes the principle. There, an unwed
father sought to block his son’s adoption by the mother’s husband. Although the
child had frequently visited his father and occasionally received presents from
him, the boy had always lived with his mother. The mother married when the
child was two years old; the adoption petition was filed when he was 11. The trial
court granted the petition, denied the father’s requests for legitimation and
visitation, and rejected his challenge to the constitutionality of statutes that gave
him no right to object to the adoption. It based its decision on the child’s best
interest, without finding that the father would be an unfit parent. (Quilloin, at pp.
The Supreme Court unanimously concluded that the father’s constitutional
rights were not infringed. “We have little doubt that the Due Process Clause
would be offended ‘[i]f a State were to attempt to force the breakup of a natural
family, over the objections of the parents and their children, without some
showing of unfitness and for the sole reason that to do so was thought to be in the
children’s best interest.’ Smith v. Organization of Foster Families, 431 U.S. 816,
862-863 (1977) (Stewart, J., concurring in judgment). But this is not a case in
which the unwed father at any time had, or sought, actual or legal custody of his
child. Nor is this a case in which the proposed adoption would place the child
with a new set of parents with whom the child had never before lived. Rather, the
result of the adoption in this case is to give full recognition to a family unit already
in existence, a result desired by all concerned, except appellant. Whatever might
be required in other situations, we cannot say that the State was required in this
situation to find anything more than that the adoption, and denial of legitimation,
were in the ‘best interests of the child.’ ” (Quilloin, supra, 434 U.S. at p. 255;
accord, e.g., Lehr v. Robertson (1983) 463 U.S. 248, 263, fn. 19.)
Quilloin demonstrates that the best interest of the child is a constitutionally
permissible basis for terminating parental rights in some circumstances. Clearly,
the rights of a father like Mr. Quilloin could be terminated under section 1516.5
without violating due process. Because mother fails to show that section 1516.5
conflicts with constitutional requirements all cases, the statute must be deemed
facially constitutional under the strict standard we applied in Pacific Legal
Foundation v. Brown, supra, 29 Cal.3d at page 181.
Nor do mother’s arguments persuade us that section 1516.5 is
unconstitutional under the alternate standard set out in cases such as San Remo
Hotel v. City and County of San Francisco, supra, 27 Cal.4th 643. She fails to
show that in “the generality or great majority of cases” (id. at p. 673), a parent
whose child has remained in a guardianship for two or more years is entitled to
insist that his or her unfitness be proven when the guardian seeks to adopt the
child. Due process requires a showing of unfitness before termination of parental
rights in order to protect the integrity of a natural family, i.e., one in which there is
a custodial relationship between parent and child. (Quilloin, supra, 434 U.S. at p.
255; see also Lehr v. Robertson, supra, 463 U.S. at pp. 259-260; In re Heather B.
(1992) 9 Cal.App.4th 535, 556, fn. 12.) In Troxel v. Granville (2000) 530 U.S. 57,
the high court reaffirmed that this requirement derives from “a presumption that fit
parents act in the best interests of their children.” (Id. at p. 68 (plur. opn. of
O’Connor, J.).) “[S]o long as a parent adequately cares for his or her children
(i.e., is fit), there will normally be no reason for the State to inject itself into the
private realm of the family . . . .” (Id. at p. 68.) 11
The comments on parental fitness in Justice O’Connor’s plurality
opinion found general agreement in the dissents filed by Justices Stevens and
Kennedy. (Troxel v. Granville, supra, 530 U.S. at pp. 86 (dis. opn. of Stevens, J.)
Thus, “ ‘some showing of unfitness’ ” is called for when a custodial parent
faces termination of his or her rights. (Quilloin, supra, 434 U.S. at p. 255.) In that
circumstance, there is no dispute that the best interest of the child would not be a
constitutionally sufficient standard for terminating parental rights. “Even if it
were shown . . . that a particular couple desirous of adopting a child would best
provide for the child’s welfare, the child would nonetheless not be removed from
the custody of its parents so long as they were providing for the child adequately.”
(Reno v. Flores (1993) 507 U.S. 292, 304, citing Quilloin, supra, 434 U.S. at p.
255.) However, section 1516.5 has no application to custodial parents. It affects
only parents whose rights have been suspended for an extended period of probate
In limited circumstances, this court has held that the best interest of the
child cannot justify terminating the rights of a parent who has demonstrated a full
commitment to parental responsibility, but whose efforts to secure custody have
been thwarted. In Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), we
reviewed a statutory scheme permitting the termination of an unwed father’s
parental rights if adoption were in the child’s best interest, even though the mother
had prevented the father from receiving the child into his home and establishing
the status of “presumed father.” (Id. at pp. 824-825.) We concluded that “[i]f an
unwed father promptly comes forward and demonstrates a full commitment to his
parental responsibilities — emotional, financial, and otherwise — his federal
& 95 (dis. opn. of Kennedy, J.); see also id. at p. 77 (conc. opn. of Souter, J.).) As
Justice Stevens also observed: “A parent’s rights with respect to her child have
. . . never been regarded as absolute, but rather are limited by the existence of an
actual, developed relationship with a child, and are tied to the presence or absence
of some embodiment of family. These limitations have arisen, not simply out of
the definition of parenthood itself, but because of this Court’s assumption that a
parent’s interests in a child must be balanced against the State’s long-recognized
interests as parens patriae, [citations], and, critically, the child’s own
complementary interest in preserving relationships that serve her welfare and
protection, [citation].” (Id. at p. 88 (dis. opn. of Stevens, J.).)
constitutional right to due process prohibits the termination of his parental
relationship absent a showing of his unfitness as a parent.” (Id. at p. 849.)
However, we emphasized that the father would be deprived of his constitutional
right “if (but only if) . . . [he] demonstrated the necessary commitment to his
parental responsibilities.” (Id. at p. 850; see also Lehr v. Robertson, supra, 463
U.S. at p. 262.)12 Otherwise, the statutory best interest of the child standard would
be “constitutionally sufficient.” (Kelsey S., at p. 849.)
Mother relies on Kelsey S., but falls well short of establishing that “in the
generality or great majority of cases” section 1516.5 violates the due process
rights of parents who have demonstrated a full commitment to their
responsibilities. (San Remo Hotel v. City and County of San Francisco, supra, 27
Cal.4th at p. 673.) Termination of parental rights and adoption by a guardian can
occur only when the parent has surrendered custody to the guardian and exercised
no parental care or control for at least two years. (§ 1516.5, subd. (a).)13 A
Lehr did not involve the unfitness standard, but the right of an unwed
father who had never lived with or supported the child to receive notice of
adoption proceedings. (Lehr v. Robertson, supra, 463 U.S. at pp. 264-265.) But
the court made the following useful observations about the connection between
parental rights and responsibilities. “[T]he rights of the parents are a counterpart
of the responsibilities they have assumed. Thus, the ‘liberty’ of parents to control
the education of their children that was vindicated in Meyer v. Nebraska, 262 U.S.
390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), was described as
a ‘right, coupled with the high duty, to recognize and prepare [the child] for
additional obligations.’ Id., at 535. The linkage between parental duty and
parental right was stressed again in Prince v. Massachusetts, 321 U.S. 158, 166
(1944), when the Court declared it a cardinal principal ‘that the custody, care and
nurture of the child reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply nor hinder.’ Ibid.
In these cases the Court has found that the relationship of love and duty in a
recognized family unit is an interest in liberty entitled to constitutional protection.”
(Lehr, at pp. 257-258.)
The parties, and amici curiae Northern California Association of
Counsel for Children and Legal Services for Children, assume in their briefing that
section 1516.5 applies only after two years of guardianship. We note that the
statutory terms are less than precise on this point. A prerequisite for filing a
prolonged guardianship, during which all parental rights and custodial
responsibilities are suspended, with the possible exception of visitation rights, is
generally inconsistent with “a full commitment to . . . parental responsibilities —
emotional, financial, and otherwise.” (Kelsey S., supra, 1 Cal.4th at p. 849.)
There are imaginable scenarios in which a fully responsible parent might
find it necessary to place a child in guardianship and, despite maintaining a
parental commitment as full as the circumstances permit, eventually face a
termination proceeding under section 1516.5. Mother posits the plight of a single
mother in the National Guard, called to duty overseas, and unable to reclaim
custody for two years. However, “we may not invalidate a statute simply because
in some future hypothetical situation constitutional problems may arise.”
(California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 347; see
also Zuckerman v. State Bd. of Chiropractic Examiners, supra, 29 Cal.4th at p.
50.) We note that section 1516.5 requires the court to consider “all factors relating
termination proceeding under section 1516.5 is that “[t]he child has been in the
physical custody of the guardian for a period of not less than two years.”
(§ 1516.5, subd. (a)(2).) The reference to “physical custody” is ambiguous; it
might include a period before the acquisition of legal custody through the
establishment of a guardianship, or it might simply require that the guardian act as
physical custodian, in addition to having legal custody. The former construction is
constitutionally problematic, because it would imply that the parent’s legal and
perhaps joint physical custody rights might continue until the time of the
termination proceeding. We adopt the construction that avoids casting doubt on
the statute’s constitutional validity, and hold that physical and legal custody by the
guardian for two years is required under section 1516.5, subdivision (a)(2).
(Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 186; In re Edgar M.
(1975) 14 Cal.3d 727, 736.)
Similarly, section 1516.5, subdivision (a)(1) requires that “[o]ne or both
parents do not have the legal custody of the child.” To the extent this provision
suggests that a parent with legal custody rights might be faced with a termination
proceeding under section 1516.5, it would be constitutionally suspect. However,
that circumstance will never occur. A section 1516.5 proceeding cannot be filed
unless there is a guardianship in place. After the appointment of a guardian,
neither parent has legal custody. (Fam. Code, § 7505, subd. (a); Guardianship of
Zachary H. (1999) 73 Cal.App.4th 51, 61.)
to the best interest of the child,” which would include the circumstances leading to
guardianship, the parent’s efforts to maintain contact with the child, any
exigencies that might hamper those efforts, and other evidence of commitment to
parental responsibilities. (§ 1516.5, subd. (a)(3).) We also note that section
1516.5 is open to constitutional challenge as applied to particular parents. (See In
re Charlotte D., supra, __ Cal.4th __.)
Mother relies on a number of dependency cases from this court and the
United States Supreme Court to support her claim that a finding of parental
unfitness is constitutionally required in a section 1516.5 proceeding. Her
authorities do not support that conclusion.14
As discussed above, Quilloin and Kelsey S. establish that in a private
adoption proceeding, parental rights may sometimes be terminated without any
prior judicial finding of parental unfitness. (Quilloin, supra, 434 U.S. at p. 255;
Kelsey S., supra, 1 Cal.4th at p. 850.) A section 1516.5 proceeding is brought to
permit a private adoption by the guardian. Dependency proceedings are
fundamentally different. Unlike probate guardianships, they are ongoing court
proceedings involving a series of interrelated hearings governed by a
14 Mother also refers to three out-of-state cases, none of which is on point.
In In re J.P. (Utah 1982) 648 P.2d 1364, the court struck down a statute
authorizing the termination of parental rights based on the child’s best interest,
after six months of removal from parental custody by temporary order of the
juvenile court. (Id. at pp. 1368, 1375.) In In re Adoption of Mays (Ohio Ct.App.
1986) 507 N.E.2d 453, the court struck down a statute authorizing the probate
court to award “permanent custody,” which effectively eliminated all parental
rights, based solely on the child’s best interest. (Id. at pp. 456, 458.) In Petitions
of Dept. of Soc. Serv. (Mass. 1983) 452 N.E.2d 497, the court briefly considered
the constitutionality of a dependency statute establishing a presumption that if a
child has been in the care of the state or a licensed agency for a year, it would be
in the child’s best interest to be adopted without parental consent. The trial judge
had not relied on the presumption, but the court agreed with the parent that it was
unconstitutional. (Id. at p. 503.)
Section 1516.5 is unlike any of these statutes. It applies only after at least
two years of probate guardianship.
comprehensive statutory scheme. (See Cynthia D. v. Superior Court (1993) 5
Cal.4th 242, 253; In re Marilyn H. (1993) 5 Cal.4th 295, 307.) The state is not a
party to a probate guardianship, and its resources are not pitted against the parent.
(Compare Santosky v. Kramer (1982) 455 U.S. 745, 759.) Nor does the state
assume jurisdiction over the child and proceed toward family reunification or an
alternative permanent placement, as in dependency cases. Rather, probate
guardianship is a private custody arrangement, approved but not supervised by the
court. The state initiates no proceedings and carries no burden to prove anything.
It performs only a judicial role. (See Guardianship of Simpson (1998) 67
Cal.App.4th 914, 931-932; Guardianship of Kassandra H., supra, 64 Cal.App.4th
at p. 1237.)
Furthermore, the dependency cases cited by mother are consistent with
Quilloin and Kelsey S. in that they employ the parental unfitness standard to
protect the parent’s custodial rights, rather than to govern decisions made about
the child’s placement after a period of removal from parental custody. Thus, in
Stanley v. Illinois, supra, 405 U.S. 645, the high court struck down a statute
allowing the state to take custody from an unmarried father after the death of the
children’s mother, based on a presumption that he was an unfit parent. (Id. at pp.
646-647.) The court held that due process guaranteed the father a hearing on his
fitness “when the issue at stake is the dismemberment of his family.” (Id. at p.
658.) Section 1516.5, by contrast, establishes no presumption and does not
separate the child from parental custody.15 The family is dismembered not at the
Mother claims section 1516.5 imposes an irrebuttable presumption of
unfitness based on the fact that the child has been in guardianship for two years.
Not so. The statute simply focuses on the child’s best interest, in light of all
The Court of Appeal below distinguished Stanley on the basis that section
1516.5 effectively incorporates a rebuttable presumption of unfitness. However,
nothing in the statute suggests that a showing of current parental fitness would
necessarily bar a finding that adoption by the guardian would be in the child’s best
time of a section 1516.5 hearing, but at least two years earlier when the
guardianship is established. At the outset of a probate guardianship, the parent’s
interest in maintaining custody is protected by the parental preference doctrine
codified in Family Code section 3041. (Prob. Code, § 1514, subd. (b).)
The constitutional sufficiency of the protections provided to parents by
Family Code section 3041 is not before us in this case. That statute was not
applied by the trial court, because mother consented to the establishment of the
guardianship. She restricts her challenge to Probate Code section 1516.5, and the
parties have briefed no constitutional issues surrounding the parental preference
doctrine as it now stands under California law.16 Similarly, though a parent’s
ability to recover custody from the guardian is a critical factor in the running of
the two-year period prescribed by section 1516.5, we have no occasion to consider
the constitutionality of Probate Code section 1601, which makes the best interest
of the child the sole criterion for terminating a guardianship. Mother never sought
to terminate the guardianship in this case, and no due process issues arising under
Probate Code section 1601 have been addressed by the parties.17 We leave the
interest. The statute establishes no presumption, rebuttable or otherwise, with
regard to parental fitness.
In contested guardianship cases involving the rights of Kelsey S. fathers,
Courts of Appeal have reasoned that because the proceedings did not involve the
termination of parental rights, due process considerations of parental fitness did
not apply. (Guardianship of Zachary H., supra, 73 Cal.App.4th at pp. 61-62;
Adoption of Daniele G. (2001) 87 Cal.App.4th 1392, 1408.) Section 1516.5 has
made the eventual termination of parental rights a potential consequence of
establishing a probate guardianship, however.
Again, the constitutional ramifications of the existing statute have been
altered by the passage of section 1516.5. In guardianship termination cases,
Courts of Appeal have rejected arguments for an elevated standard of proof
(Guardianship of Simpson, supra, 67 Cal.App.4th at p. 933), and a parental
unfitness standard (Guardianship of L.V., supra, 136 Cal.App.4th 481, 494-496).
These courts reasoned that the due process considerations applicable to the
termination of parental rights were not pertinent, because there was no prospect
that the parents would face any final termination of their rights. (Simpson, at pp.
931-932; L.V., at pp. 493-494.) Section 1516.5 has introduced that prospect.
constitutional questions involved in these contexts for cases where they are
For our purposes here, the relevant teaching of the dependency cases is
that a finding of parental unfitness is not necessarily required at the point when
parental rights are terminated. In a dependency proceeding, due process is
satisfied if unfitness is established at an earlier stage, and parental rights
terminated later based on the child’s best interest. (Cynthia D. v. Superior Court,
supra, 5 Cal.4th at p. 256; Santosky v. Kramer, supra, 455 U.S. at p. 760.)18
Mother places great reliance on a footnote in Cynthia D. discussing an earlier
California statutory scheme that required clear and convincing evidence of
parental fault in termination proceedings. The Cynthia D. court noted that under
the former statutes, the clear and convincing evidence standard was “appropriate
in light of the fact that this is a separate proceeding in which specific findings of
fault or detriment are required.” (Cynthia D., at p. 253, fn. 8; see In re Angelia P.,
supra, 28 Cal.3d at p. 919; In re Carmaleta B., supra, 21 Cal.3d at pp. 490-495.)
Mother argues that a section 1516.5 proceeding is likewise a “separate
proceeding” in which a finding of parental fault is required.
The analogy does not hold. The findings of fault discussed in the Cynthia
D. footnote were prescribed by statute. Due process does not require such
findings to be simultaneous with the termination of parental rights. In another
The New York dependency statutes reviewed in Santosky were quite
different from our California scheme, and the Cynthia D. court went to some
length to distinguish Santosky. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at
pp. 250-256.) Nevertheless, while the factfinding and dispositional hearings at
issue in Santosky were closer together in time than the hearings analyzed in
Cynthia D., the Santosky court clearly distinguished between them. At the
factfinding stage, the New York statute required the state to prove “permanent
neglect” by the parents. The court equated this standard with the showing of
parental unfitness required by due process. (Santosky v. Kramer, supra, 455 U.S.
at pp. 748, 759-760, & fn. 10.) At the subsequent dispositional hearing, when
parental rights were terminated, the court approved the application of the best
interest of the child standard. (Id. at pp. 748-749, 752, 760.)
case involving the former statutory scheme, we recognized that “the equivalent of
a finding of unfitness . . . is necessary at some point in the proceedings as a matter
of due process before parental rights may be terminated.” (In re Jasmon O. (1994)
8 Cal.4th 398, 423, italics added.) Whether the guardianship statutes afford
sufficient protection to parental rights in advance of a section 1516.5 hearing is a
question beyond the scope of this case. But it is clear that the parental fitness
standard, which protects parents’ interest in child custody, is not necessarily
required at a section 1516.5 hearing. By that stage, the parent-child family unit
has ceased to exist and the parent’s entitlement to custody is not at issue. It would
be anomalous to require proof in every case, by clear and convincing evidence,
that a mother or father who has had no custodial responsibilities for two or more
years is currently an unfit parent.
We emphasize that our holding is a narrow one, limited to mother’s
contention that due process demands a finding of parental unfitness at a section
1516.5 hearing. Parents are entitled to fundamentally fair procedures in
proceedings to terminate their rights, whether or not they have custody of their
children and whether it is the state or a private party that moves to sever the
parental bond. “The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply because they
have not been model parents or have lost temporary custody of their child . . . .
Even when blood relationships are strained, parents retain a vital interest in
preventing the irretrievable destruction of their family life. If anything, persons
faced with forced dissolution of their parental rights have a more critical need for
procedural protections than do those resisting state intervention into ongoing
family affairs.” (Santosky v. Kramer, supra, 455 U.S. at pp. 753-754; see In re
Sade C. (1996) 13 Cal.4th 952, 987-988.) However, the procedural standards
governing proceedings to terminate parental rights are not invariable. The nature
and stage of the proceeding, and the passage of time without parental custody,
may make a difference.
After years of guardianship, the child has a fully developed interest in a
stable, continuing, and permanent placement with a fully committed caregiver.
(Cf. Guardianship of Kassandra H., supra, 64 Cal.App.4th at p. 1238-1239; see
also, e.g., In re Sade C., supra, 13 Cal.4th at p. 988; In re Marilyn H., supra, 5
Cal.4th at p. 306; In re Daniel M. (1993) 16 Cal.App.4th 878, 884-885.)19 The
guardian, after fulfilling a parental role for an extended period, has also developed
substantial interests that the law recognizes. (In re Kieshia E. (1993) 6 Cal.4th 68,
75-76; In re B.G., supra, 11 Cal.3d at pp. 692-693; Fam. Code, § 3041, subds. (c)
& (d); Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 843-844,
and fn. 49.) The parental unfitness criterion urged by mother fails to account for
these competing interests, whereas the best interest of the child standard allows the
court to appropriately balance all the relevant factors arising from the child’s
family relationships. (§ 1516.5, subd. (a)(3); see Marilyn H., at p. 306; In re
Angelia P., supra, 28 Cal.3d at pp. 916, 919.)
Accordingly, we hold that section 1516.5 is not unconstitutional on its face
for failing to require a finding of present parental unfitness.
Mother contends the trial court erred by applying section 1516.5
retroactively. Respondents, the B.’s, note that a statute does not operate
retroactively merely because its application depends on preexisting facts or
conditions. (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232,
243.) They argue that the trial court simply applied the statute to the existing
circumstances. However, “[a] statute is retroactive if it substantially changes the
legal effect of past events.” (Kizer v. Hanna (1989) 48 Cal.3d 1, 7; see Western
Security Bank, at p. 243.) That is plainly the case here.
In the dependency context, we have held that the child’s best interest
becomes the paramount consideration after an extended period of foster care. (In
re Jasmon O., supra, 8 Cal.4th at pp. 418-419; Cynthia D. v. Superior Court,
supra, 5 Cal.4th at p. 256.)
Mother agreed to temporary guardianship in October 2001 and permanent
guardianship in December 2001. In 2003, the B.’s sought to terminate mother’s
parental rights on grounds provided in the Family Code. They were unsuccessful.
After section 1516.5 took effect on January 1, 2004, the B.’s promptly filed a
petition under the new statute. The court terminated mother’s parental rights in
June 2005. Thus, section 1516.5 substantially changed the legal effect of the
guardianship that was established two years before the statute’s operative date.
In the trial court, mother relied on the general rule that a statute does not
operate retroactively unless the Legislature plainly intended it to do so. (Western
Security Bank v. Superior Court, supra, 15 Cal.4th at p. 243; see also In re
Marriage of Fellows (2006) 39 Cal.4th 179, 189.) However, as noted by the Court
of Appeal, the Legislature has clearly expressed its intention that amendments to
the Probate Code apply on their effective date regardless of prior events, with
limited exceptions. Probate Code section 3, subdivision (c) provides: “Subject to
the limitations provided in this section, a new law applies on the operative date to
all matters governed by the new law, regardless of whether an event occurred or
circumstance existed before, on, or after the operative date, including, but not
limited to, creation of a fiduciary relationship, death of a person, commencement
of a proceeding, making of an order, or taking of an action.” The “manifest
purpose” of this provision is “to make legislative improvements in probate law
applicable on their operative date whenever possible.” (Rice v. Clark (2002) 28
Cal.4th 89, 99.)
Mother now claims she is protected by the limitation provided in
subdivision (h) of Probate Code section 3: “If a party shows, and the court
determines, that application of a particular provision of the new law . . . would
substantially interfere with . . . the rights of the parties or other interested persons
in connection with an event that occurred or circumstance that existed before the
operative date, the court may, notwithstanding this section or the new law, apply
either the new law or the old law to the extent reasonably necessary to mitigate the
substantial interference.” Although mother failed to invoke this exception below,
her arguments are essentially the same as the due process claims she raised in the
trial court, and which she renews in this court. Mother contends she was entitled
to rely on the state of the law governing termination of parental rights at the time
she consented to the guardianship. (For the preexisting statutory grounds, see fn.
6, ante.) She notes that she filed a declaration in the trial court stating: “Had
Probate Code section 1516.5 existed at the time I was contemplating a
guardianship, I probably would not have entered into one.”
The provisions of Probate Code section 3, subdivision (h) comport with due
process by allowing a party affected by a new statute to show why, under the
circumstances presented, justice requires the application of former law.20 (See In
re Marriage of Fellows, supra, 39 Cal.4th at pp. 189-190 [applying parallel terms
of Fam. Code, § 4, subd. (h).) In weighing such a claim, we consider “the
significance of the state interest served by the law, the importance of the
retroactive application of the law to the effectuation of that interest, the extent of
reliance upon the former law, the legitimacy of that reliance, the extent of actions
taken on the basis of that reliance, and the extent to which the retroactive
application of the new law would disrupt those actions.” (In re Marriage of
Bouquet (1976) 16 Cal.3d 583, 592; see Fellows, at p. 189.)
The comments of the Law Revision Commission make it clear that this
exception was meant to operate on a case-by-case basis. “Because it is impractical
to attempt to deal with all the possible transitional problems that may arise in the
application of the new law to various circumstances, subdivision (h) provides a
safety-valve that permits the court to vary the application of the new law where
there would otherwise be a substantial impairment of procedure or justice. This
provision is intended to apply only in the extreme and unusual case, and is not
intended to excuse compliance with the basic transitional provisions simply
because of minor inconveniences or minor impacts on expectations or other
interests.” (Cal. Law Revision Com. com., reprinted at 52 West’s Ann. Prob.
Code (2002 ed.) foll. § 3, p. 11.) “The Commission’s official comments are
deemed to express the Legislature’s intent.” (Fair v. Bakhtiari (2006) 40 Cal.4th
The interests served by section 1516.5 are substantial: affording children in
probate guardianships the opportunity to enjoy permanent adoptive homes with
familiar caretakers, and giving willing guardians the chance to become adoptive
parents. Here, retroactive application is important to provide Ann and the B.’s
with the benefits of adoption. On the other hand, little weight attaches to mother’s
claim that she “probably” would not have consented to the guardianship had she
known it might lead to the termination of her parental rights. As the Court of
Appeal observed, mother’s heroin addiction prevented her from caring for Ann,
and she had virtually abandoned the child to the B.’s. Mother’s drug use
continued after the guardianship was established, and she soon found herself in
prison. Thus, whether or not she consented, a guardianship was likely to have
been instituted. If a probate guardianship were not established, a dependency
proceeding would have been unavoidable, and mother would then have faced
termination of her parental rights on a much shorter timetable. (See Welf. & Inst.
Code, § 361.5, subd. (a).) Indeed, the B.’s themselves could have asked the
juvenile court to initiate a dependency proceeding, where adoption would be the
favored permanent plan if mother were unable to reunify with Ann. (See In re
Jacklyn F., supra, 114 Cal.App.4th at p. 756.)
Given that mother never sought visitation during more than three and a half
years of probate guardianship, and had not seen Ann for an even longer period,
reunification was at best a remote possibility. Mother does not dispute the trial
court’s finding that she was in no position to take custody of Ann, and could not
say when she would be able to do so. In these circumstances, retroactive
application of section 1516.5 was consistent with due process. We note, however,
that trial courts have broad discretion to consider all the relevant facts in each case
to determine whether to make an exception under Probate Code, section 3,
subdivision (h) and the associated due process principles. Our holding on
mother’s retroactivity claim is limited to the facts of this case.
We affirm the judgment of the Court of Appeal.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Guardianship of Ann S.
Review Granted XXX 138 Cal.App.4th 644
Date Filed: March 19, 2009
Judge: Timothy L. Fall
Attorneys for Appellant:Kimball J. P. Sargeant, under appointment by the Supreme Court, for Objector and Appellant.
Attorneys for Respondent:C. Athena Roussos; Law Office of Karen Ehler, Karen Ehler; Ishikawa Law Office and Brandon Ishikawa
for Petitioners and Respondents.
Gradstein & Gorman and Marc Gradstein for Academy of California Adoption Lawyers and Academy of
California Family Formation Lawyers as Amici Curiae on behalf of Petitioners and Respondents.
No appearance for Minor.
Donna Wickham Furth for Northern California Association of Counsel for Children and Legal Services for
Children as Amici Curiae on behalf of Minor.
Counsel who argued in Supreme Court (not intended for publication with opinion):Kimball J. P. Sargeant
Law Office of Kimball J. P. Sargeant
216 F Street, #148
Davis, CA 95616-4515
C. Athena Roussos
9630 Bruceville Road, Suite 106-386
Elk Grove, CA 95757
Petition for review after the Court of Appeal affirmed an order terminating parental rights. This case presents the following issue: Is Probate Code section 1516.5 constitutional if it permits the termination of parental rights without a present finding of parental unfitness? A similar issue is before the court in In re Charlotte D. (S142028).
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 03/19/2009||45 Cal. 4th 1110, 202 P.3d 1089, 90 Cal. Rptr. 3d 701||S143723||Review - Civil Appeal||closed; remittitur issued|| |
D. (CHARLOTTE), IN RE (S142028)
|1||C., A. (Objector and Appellant)|
Represented by Kimball J. P. Sargeant
Attorney at Law
216 "F" Street, Suite 148
|2||B., A. (Petitioner and Respondent)|
Represented by Karen Fritts Ehler
Attorney at Law
433 Second Street, Suite 101-B
|3||B., A. (Petitioner and Respondent)|
Represented by Carmenella Athena Roussos
Attorney at Law
9630 Bruceville Road, Suite 106-386
Elk Grove, CA
|4||S., Ann (Overview party)|
|5||B., B. (Petitioner and Respondent)|
Represented by Karen Fritts Ehler
Attorney at Law
433 Second Street, Suite 101-B
|6||B., B. (Petitioner and Respondent)|
Represented by Carmenella Athena Roussos
Attorney at Law
9630 Bruceville Road, Suite 106-386
Elk Grove, CA
|7||Northern California Association Of Counsel For Children (Amicus curiae)|
Represented by Donna Wickham Furth
Attorney at Law
1333 Balboa Street, #1
San Francisco, CA
|8||Legal Services For Children (Amicus curiae)|
Represented by Donna Wickham Furth
Attorney at Law
1333 Balboa Street, Suite 1
San Francisco, CA
|Opinion||Justice Carol A. Corrigan|
|Mar 19 2009||Opinion: Affirmed|
|May 23 2006||Petition for review filed|
A.C., objector and appellant Kimball Sargeant, counsel (filed in Sac.)
|May 25 2006||Received Court of Appeal record|
|Jun 12 2006||Answer to petition for review filed|
Anthony B. and Teddi B., respondents, by Brendon Ishikawa, Ishikawa Law Office, and Karen Ehler, Law Office of Karen Ehler. (Filed in Sacramento)
|Jul 19 2006||Petition for review granted (civil case)|
Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
|Jul 19 2006||Letter sent to:|
All counsel enclosing a copy of the grant order and the form for certification of interested entities and persons.
|Jul 25 2006||Certification of interested entities or persons filed|
by Brendon Ishikawa, Attorney for Respondents Anthony B. & Teddi b.
|Aug 2 2006||Certification of interested entities or persons filed|
by Kimball J.P. Sargeant, counsel for objector and appellant (Armida C.)
|Aug 10 2006||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Kimball Sargeant is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty )30) days from the date of this order. Your attention is directed to California Rules of Court, rule 29.1, for the briefing requirements. Please note also that, because this is a child dependency case, the court may grant an extension of time only on "an exceptional showing of good cause." (Code Civ. Proc., Section 45; Cal. Rules of Court, rule 38.2(d).)
|Sep 7 2006||Request for extension of time filed|
to October 11, 2006, to file Appellant's [A.C.] Opening Brief on the Merits.
|Sep 13 2006||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Opening Brief on the Merits is extended to and including October 11, 2006. No further extensions of time will be granted.
|Oct 11 2006||Opening brief on the merits filed|
Appellant A. C. by Kimball Sargeant, Superme Court appointed counsel (Filed in Sacramento)
|Nov 1 2006||Answer brief on the merits filed|
Anthony B. and Teddi B., respondents by Brendon Ishikawa and Karen Ehler, retained counsel (Filed in Sacramento)
|Nov 22 2006||Received:|
Oversize reply brief and application A.C., Objector and appellant Kimball Sargeant, counsel
|Nov 30 2006||Order filed|
The application for permission to file Appellant's Reply Brief on the Merits containing 9,553 words that exceeds the 4,200 word limit prescribed by California Rules of Court rule 29..1(c)(1) by 5,353 words, is hereby granted.
|Nov 30 2006||Reply brief filed (case fully briefed)|
A. C., objector and appellant PERM by Kimball J.P. Sargeant, Supreme Court appointed counsel.
|Dec 20 2006||Compensation awarded counsel|
|Dec 28 2006||Received application to file Amicus Curiae Brief|
Northern California Association of Counsel for Children and Legal Services for Children in support of the minor, Ann Marie S. by Donna Wickham furth, retained counsel.
|Jan 4 2007||Permission to file amicus curiae brief granted|
The application of Northern California Association of Counsel for Children and Legal Services for Children for permission to file an amicus curiae brief in support of the Minor, Ann Marie S. is hereby granted. An Answer thereto may be served and filed by any party within twenty days of the filing of the brief.
|Jan 4 2007||Amicus curiae brief filed|
Northern California Association of Counsel for Children and Legal Services for Children in support of the Minor, Ann Marie S.
|Jan 11 2007||Change of contact information filed for:|
Brendon Ishikawa, counsel for appellants (Anthony B. and Teddi B.)
|Jan 19 2007||Request for extension of time filed|
to February 7, 2007, to file appellant's answer to amicus curiae brief of Northern California Association of Counsel for Children and Legal Services for Children.
|Jan 24 2007||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's response to the amicus curiae brief of Northern California Association of Counsel for Children and Legal Services for Children is extended to and including February 7, 2007.
|Feb 9 2007||Received:|
Late (2 days) Appellant's response to amicus curiae brief. (Received in Sacramento)
|Feb 16 2007||Response to amicus curiae brief filed|
Appellant's (A.C.) Filed with permission (2 days late)
|Nov 12 2008||Received:|
Notice of Disassociation of Counsel Brendon Ishikawa from Karen Ehler, Attorney of Record for Respondents Anthony B. and Teddi B..
|Nov 20 2008||Association of attorneys filed for:|
Attorney C. Athena Roussos for respondents, Anthony B. and Teddi B. by Karen Ehler, counsel for respondents
|Dec 10 2008||Case ordered on calendar|
to be argued on Thursday, January 8, 2009, at 9:00 a.m., in San Francisco
|Dec 17 2008||Application filed|
"Joint Request to Continue Oral Argument" filed by C. Athena Roussos (counsel for respondents A.B. and T.B.) and Kimball J.P. Sargeant (counsel for appellant A.C.)
|Dec 17 2008||Order filed|
The request to continue oral argument, filed on December 17, 2008, is denied.
|Jan 8 2009||Cause argued and submitted|
|Mar 18 2009||Notice of forthcoming opinion posted|
|Mar 19 2009||Opinion filed: Judgment affirmed in full|
We affirm the judgment of the Court of Appeal. Opinion by Corrigan, J. -- joined by George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, JJ.
|Apr 21 2009||Remittitur issued|
|Jul 22 2009||Compensation awarded counsel|
|Apr 24 2009||Received:|
Acknowledgment of receipt for remittitur.
|Oct 11 2006||Opening brief on the merits filed|
|Nov 1 2006||Answer brief on the merits filed|
|Nov 30 2006||Reply brief filed (case fully briefed)|
|Jan 4 2007||Amicus curiae brief filed|
|Feb 16 2007||Response to amicus curiae brief filed|
|May 17, 2010|
Annotated by dashman
Judge Corrigan wrote for the Court
b. Can Probate Code Section 1516.5 apply retroactively such that the threshold two year guardianship period accrues before the provision was enacted?
Probate Code Section 1516.5, on its face, does not violate parents’ substantive due process rights. The statute is not facially unconstitutional. The particular retroactive application of Section 1516.5 was also appropriate.
Both parents ultimately consented to permanent guardianship without visitation for the mother. The mother continued to use drugs, and eventually plead guilty to a theft charge, receiving a 32 month prison sentence. Before pleading guilty, the mother feared that a conviction might have constituted her third felony strike, and she briefly considered allowing the respondents to adopted Ann. The mother reconsidered when offered the non-strike plea. Shortly after the mother was imprisoned, the respondents filed an adoption petition. The child’s father consented to adoption while the mother objected.
Respondents moved to terminate parental rights (TPR) due to abandonment and conviction of a felony demonstrating parental unfitness. The mother’s probation officer supported the respondent’s TPR motion, noting the child’s progress with the respondents and offering that the mother’s continued drug use and past failure in rehabilitation programs posed significant challenges to her suitability in raising the child. The trial court denied this TPR motion, ruling that the mother could not abandon the child through judicial sentencing and that the mother’s criminal record did not demonstrate sufficient parental unfitness.
The trial court found by clear and convincing evidence that adoption by the respondents would be in Ann’s best interest, and terminated mother’s parental rights. The Court of Appeal affirmed this decision, rejecting the mother’s arguments that (1) Section 1516.5 unconstitutionally interferes with parents’ substantive due process right to the care and custody of their children and (2) that the statute should not be applied retroactively. Mother appealed to the Supreme Court.
1) The historical development of probate guardianship, that is actions by private persons to safeguard the welfare of children who cannot safely remain with their parents, places primary focus on the best interests of the child. The guardian assumes the care, custody, and control of the child, and the parent’s parental rights, other than possible visitation, are completely suspended for the duration of a probate guardianship.
2) Under the state’s guardianship law, before a court can grant custody to a nonparent over parental objection, the court must find “clear and convincing evidence” that “granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.” Fam. Code, § 3041. However, the Legislature has made clear that critical finding of detriment to the child does not necessarily turn on parental unfitness and can instead center on the stability of successful, established custodial arrangements or other factors in the child’s best interest. See Fam. Code, §§ 3041(c);(d).
3) In enacting Probate Code Section 1516.5, the Legislature intended a new avenue for the court to terminate parental rights when a child has been in the custody of a guardian for at least two years but there is no basis for the termination of parental rights except that it would be in the best interest of the child to be adopted by the guardian.
4) Facial constitutional challenges to state statutes must show constitutional depravation “in the generality or great majority of cases” brought under the statute. The mother in this case claimed an even stricter standard: that Section 1516.5 is unconstitutional in all cases because it permits the termination of parental rights based only on the child’s best interest and not on a finding of parental unfitness.
5) It is settled, however, that such a finding is not an invariable constitutional requirement when parental rights are terminated under Quilloin v. Walcott (1978) 434 U.S. 246. While some showing of unfitness is required when a custodial parent faces termination of his or her rights, parents under Section 1516.5 by statutory requirement are not custodial. TPR and adoption by a guardian can occur only when the parent has surrendered custody to the guardian and exercised no parental care or control for at least two years.
6) While there hypothetical situations exist where a responsible parent might face TPR under Section 1516.5 after placing a child in guardianship and maintain a parental commitment such to raise as applied constitutional issues, such hypothetical possibilities do not show constitutional concerns “in the generality or great majority of cases.” Section 1516.5 is facially constitutional.
7) As applied to this case, the accrual of the two year guardianship period does indeed render Section 1516.5 retroactive to the extent that it changes the legal effect of past events. However, the Legislature has clearly expressed its intention that amendments to the Probate Code apply on their effective date regardless of prior events. Under the statutory scheme, upon a showing by a party that the new law would interfere with rights involved in past events, the court retains discretion whether to apply the new law retroactively in order to mitigate such interference. See Probate Code § 3(h). In this case, the interests of the child and guardians in securing their stable, constructive environment far outweighed the mother’s speculative claim that she would not have consented to guardianship (because she was addicted to drugs, could not care for the child, and would have likely lost custody anyway).
Tags: guardian; guardianship; termination of parental rights; tpr; parental rights; adoption; Probate Code Section 1516.5