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In re Guardianship of Ann S.

March 19, 2009


Ct.App. 3 C049915 Yolo County Super. Ct. Nos. PG01254 & SA0241. Timothy L. Fall.

The opinion of the court was delivered by: Corrigan, J.

Filed 03/19/2009 (this opn. precedes companion case, S142018, also filed 3/19/09)

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.)*fn1 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.

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 pre-existing 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, § 7825).

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 granted review.


A. Probate Guardianship

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.)*fn2 In such cases, courts recognized that the "right of the parent [to ...

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