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
STORY CONTINUES FROM PART I.
The Supreme Court unanimously concluded that the fathers 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 childrens 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 mothers 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 OConnor, 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.) [1]
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 childs 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 guardianship.
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 fathers parental rights if adoption were in the childs 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 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.)[2] 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).)[3] 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 to the best interest of the child, which would include the circumstances leading to guardianship, the parents 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.[4]
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 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 parents custodial rights, rather than to govern decisions made about the childs 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 childrens 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.[5] The family is dismembered not at the 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 parents 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.[6] Similarly, though a parents 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.[7] We leave the constitutional questions involved in these contexts for cases where they are squarely presented.
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 childs best interest. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256; Santosky v. Kramer, supra, 455 U.S. at p. 760.)[8] 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. (CynthiaD., 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 CynthiaD. footnote were prescribed by statute. Due process does not require such findings to be simultaneous with the termination of parental rights. In another 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 parents 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 mothers 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.)[9] 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 childs 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.
D. Retroactivity
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.
Mother agreed to temporary guardianship in October 2001 and permanent guardianship in December 2001. In 2003, the B.s sought to terminate mothers 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 mothers parental rights in June 2005. Thus, section 1516.5 substantially changed the legal effect of the guardianship that was established two years before the statutes 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.[10] (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 ofBouquet (1976) 16 Cal.3d 583, 592; see Fellows, at p. 189.)
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 mothers 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, mothers heroin addiction prevented her from caring for Ann, and she had virtually abandoned the child to the B.s. Mothers 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 courts 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 mothers retroactivity claim is limited to the facts of this case.
III. DISPOSITION
We affirm the judgment of the Court of Appeal.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Guardianship of Ann S.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 138 Cal.App.4th 644
Rehearing Granted
__________________________________________________________________________________
Opinion No. S143723
Date Filed: March 19, 2009
__________________________________________________________________________________
Court: Superior
County: Yolo
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
(530) 753-5833
C. Athena Roussos
9630 Bruceville Road, Suite 106-386
Elk Grove, CA 95757
(916) 670-7901
Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line Lawyers.
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[1] The comments on parental fitness in Justice OConnors 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.) & 95 (dis. opn. of Kennedy, J.); see also id. at p. 77 (conc. opn. of Souter, J.).) As Justice Stevens also observed: A parents 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 Courts assumption that a parents interests in a child must be balanced against the States long-recognized interests as parens patriae, [citations], and, critically, the childs own complementary interest in preserving relationships that serve her welfare and protection, [citation]. (Id. at p. 88 (dis. opn. of Stevens, J.).)
[2] 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.)
[3] 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 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 parents 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 statutes 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.)
[4] 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 childs 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 childs 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 childs 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.
[5] 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 childs best interest, in light of all relevant circumstances.
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 childs best interest. The statute establishes no presumption, rebuttable or otherwise, with regard to parental fitness.
[6] 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.
[7] 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.
[8] 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.)
[9] In the dependency context, we have held that the childs 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.)
[10] 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 Wests Ann. Prob. Code (2002 ed.) foll. 3, p. 11.) The Commissions official comments are deemed to express the Legislatures intent. (Fair v. Bakhtiari (2006) 40 Cal.4th 189, 195.)
