Ct.App. 2/6 B183788. Ventura County Super. Ct. No. A14917 Charles W. Campbell, Jr.
The opinion of the court was delivered by: Corrigan, J.
Filed 03/19/2009 (this opn. follows companion case, S143723, also filed 3/19/09)
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.*fn1 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.
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.
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 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 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 assumed jurisdiction of any modifications to the Nevada ...