Guardianship of ANN S.
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. Court 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. Court 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 Court 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.
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