Statute Authorizing Court to Free Child From Parental Custody and Control in Probate Guardianship Proceeding Is Constitutional

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Prob.C. 1516.5 authorizes a proceeding to free a child from parental custody and control in a probate guardianship proceeding where one or both parents do not have legal custody, the child has been in the physical custody of the guardian for at least 2 years, and the court finds that the child would benefit from being adopted by the guardian. In making that determination, the court must consider “all factors relating to the best interest of the child.” (Prob.C. 1516.5(a).) The constitutionality of the statute was upheld in Guardianship of Ann S. (2009) 45 C.4th 1110, 90 C.R.3d 701, 202 P.3d 1089. Both parents of a child consented to a permanent guardianship, without visitation by the child’s mother, with the father’s sister and her husband as guardians; the father consented to adoption. Over 2 years later, the guardians petitioned to terminate the mother’s parental rights and adopt the child. The mother resisted the petition, contending that Prob.C. 1516.5 unconstitutionally interferes with the substantive due process rights of parents to the care, custody, and control of their children. Held, the statute is not facially unconstitutional.

(a) The mother contended that the statute is facially unconstitutional because it allows the termination of parental rights based only on the child’s best interest, and that due process requires a showing that the parent is presently unfit and a showing that terminating parental rights is the least detrimental alternative for the child. (45 C.4th 1127.) However, Quilloin v. Walcott (1978) 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511, 7 Summary (10th), Constitutional Law, §650, establishes the principle that a finding of parental unfitness is not always constitutionally required when parental rights are terminated and that “the best interest of the child is a constitutionally permissible basis for terminating parental rights in some circumstances.” (45 C.4th 1128, 1129.)

(b) Due process requires a showing of parental unfitness before a 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.” (45 C.4th 1129.) However, Prob.C. 1516.5 has no application to custodial parents. It applies only to parents whose rights have been suspended for an extended period under a probate guardianship, i.e., to parents who have surrendered custody to the guardian and have not exercised parental care or custody for at least 2 years. (45 C.4th 1130, 1131.)

(c) The mother relied on a number of dependency decisions to support her claim that a finding of parental unfitness is constitutionally required in a probate guardianship proceeding under Prob.C. 1516.5. But these authorities do not support that claim. Under the dependency cases, a finding of parental unfitness is not necessarily required at the point where parental rights are terminated. Unfitness can be established at an earlier stage, and parental rights terminated later, in the best interest of the child. (45 C.4th 1134.)

(d) The holding here is narrow. Because due process does not require a finding of parental unfitness at a Prob.C. 1516.5 hearing, the statute is not unconstitutional on its face, but the statute may be open to a constitutional challenge as applied to particular parents. (45 C.4th 1132.) Further, whether the guardianship statutes provide sufficient protection to parental rights in advance of a Prob.C. 1516.5 hearing is not before the court and is beyond the scope of this case. (45 C.4th 1135.)

Witkin References

On parental custody and control in probate guardianship proceedings, see 14 Summary (10th), Wills and Probate, §926.