A.B v. A.C
Filed 3/19/09 (this opn. precedes companion case, S142018, also filed 3/19/09)
IN THE SUPREME COURT OF CALIFORNIA
Guardianship of ANN S., a Minor. )
__________________________________ )
)
)
Petitioners and Respondents, )
v. )
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 childs 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 parents 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 childs 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 courts 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.
I. BACKGROUND
Ann S. was born in March 2000. Mother was a heroin addict with a lengthy criminal record. Anns father was also a drug user. The parents relationship was unstable. In October and December 2000, fathers 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 mothers 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 mothers 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. Anns half siblings, ages 15 and 5, were in a long-term guardianship with mothers 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 (Anns 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 mothers continued drug use, arrests, and failures in rehabilitation programs. T.B. was concerned about Anns well-being and the stress caused by the uncertainty of the current situation.
The report concluded that while mothers 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 mothers 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 mothers 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 Anns guardians since December 2001, that their adoption petition was pending, and that adoption was in the childs 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 Anns 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 Anns best interest. Finding by clear and convincing evidence that adoption by the B.s would be in Anns best interest, the court terminated mothers parental rights.
The Court of Appeal affirmed, rejecting mothers constitutional claims and her argument that section 1516.5 should not be applied to her retroactively. We granted review.
II. DISCUSSION
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 childs] 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. & Womens 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 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 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 courts 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 childs physical needs and the childs 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 childs 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.)
B. Section 1516.5
Section 1516.5 authorizes the termination of parental rights after two years of probate guardianship, if adoption by the guardian is in the childs best interest.[5] An analysis prepared by Senate Judiciary Committee staff notes that under preexisting law, a guardian seeking to adopt without the consent of the childs 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 a written guardianship agreement that may or may not have been entered in a formal court proceeding.[[7]] 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 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 mothers parental rights based on Anns best interest.
C. Facial Constitutionality
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 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 childs 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 parents 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 mothers 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 requires the court to consider the current situation of the child, the guardians, and the parent. Mothers quarrel is with the kind of circumstances the court is directed to examine.
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 childs 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 childs 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 statutory grounds of parental unfitness, without elevating them to constitutional requirements. (Carmaleta B., at pp. 490-495.)
The gravamen of mothers 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 sons adoption by the mothers 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 fathers 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 childs best interest, without finding that the father would be an unfit parent. (Quilloin, at pp. 247, 251-252.)
TO BE CONTINUED AS PART II.
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[1] 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.)
[2] 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 Childrens Court (2003) 12 S.Cal. Rev.L. & Womens Stud. 191, 194-195 (hereafter Weisz & McCormick).
[3] The Probate Code also includes provisions for temporary guardianship pending the appointment of a permanent guardian, or during a suspension of the guardians powers. (Prob. Code, 2250 et seq.)
[4] 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. & Womens Stud. at pp. 202-203.)
(a) A proceeding to have a child declared free from the custody and control of one or both parents may be brought in the guardianship proceeding pursuant to Part 4 (commencing with Section 7800) of Division 12 of the Family Code, if all of the following requirements are satisfied:
(1) One or both parents do not have the legal custody of the child.
(2) The child has been in the physical custody of the guardian for a period of not less than two years.
(3) The court finds that the child would benefit from being adopted by his or her guardian. In making this determination, the court shall consider all factors relating to the best interest of the child, including, but not limited to, the nature and extent of the relationship between all of the following:
(A) The child and the birth parent.
(B) The child and the guardian, including family members of the guardian.
(C) The child and any siblings or half-siblings.
(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 ( 7829).
[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).)
[8] Mother notes that a Senate floor analysis includes the observation: There are some constitutional problems with this procedure that may be curable. (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.
[9] 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 courts findings, as the trial court in this case recognized.
[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 childs 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 Legislatures specification that [i]n making this determination, the court shall consider all factors relating to the best interest of the child . . . . ( 1516.5, subd. (a)(3).)
