In re Guardianship of Ann S.

• Court: California Court of Appeals
• Writing for the Court: Scotland
• Citation: In re Guardianship of Ann S., 41 Cal.Rptr.3d 709, 138 Cal.App.4th 644 (Cal. App. 2006)
• Decision Date: 13 April 2006
• Docket Number: No. C049915.,C049915.
• Parties: GUARDIANSHIP OF ANN S., a Minor. A.B. et al., Petitioners and Respondents, v. A.C., Objector and Appellant.

41 Cal.Rptr.3d 709

138 Cal.App.4th 644

GUARDIANSHIP OF ANN S., a Minor A.B. et al., Petitioners and Respondents, v. A.C., Objector and Appellant.

No. C049915.

Court of Appeal, Third District.

April 13, 2006.

Certified for Partial Publication.^*

Law Office of Kimball J.P. Sargeant and Kimball J.P. Sargeant, Davis, under appointment by the Court of Appeal, for Objector and Appellant.

Law Office of Karen Ehler and Karen Ehler, Woodland; Ishikawa Law Office and Brendon Ishikawa, Davis, for Petitioners and Respondents.

Gradstein & Gorman and Marc Gradstein, Burlingame, for Academy of California Adoption Lawyers and the Academy of California Family Formation Lawyers as Amicus Curiae on behalf of Petitioners and Respondents.

SCOTLAND, P.J.

Since September 26, 2001, when Ann S. (the minor) was 18 months old, her paternal aunt and the aunt's husband have been her guardians. After almost four years had passed, her mother's parental rights were terminated pursuant to Probate Code section 1516.5, which provides that a trial court may declare a child free from a parent's custody and control if (1) the parent does not have legal custody of the child, (2) the child has been in the custody of a legal guardian for at least two years, and (3) the child would benefit from being adopted by the guardian. (Prob.Code, § 1516.5, subd. (a).)

Mother appeals, claiming that Probate Code section 1516.5 is an unconstitutional infringement upon her fundamental rights as a parent because it allows the termination of parental rights without a "showing of current parental unfitness. . . ." In the alternative, she contends that the trial court erred in applying the statute retroactively and that, in any event, principles of res judicata preclude its application to the circumstances of this case. We shall affirm the judgment.

As we will explain in the published parts of this opinion, Probate Code section 1516.5 reflects valid legislative determinations that (1) where a parent has left his or her child in a guardianship for at least two years without rectifying the problem that required the guardianship, there is a compelling state interest in protecting the child's need for stability, which takes precedence over parental rights, and that (2) where the guardian wants to adopt the child, and the trial court finds by clear and convincing evidence that the child will benefit from being adopted by the guardian, there is a rebuttable presumption that (a) the parent is unfit to have custody of the child, in the sense the parent is not presently capable of properly caring for the child due to the parent's situation, and (b) it would be detrimental to the child not to terminate parental rights in order to permit the adoption to take place. The presumption is rebutted if the parent demonstrates otherwise by a preponderance of the evidence.

We conclude that section 1516.5 is narrowly tailored to achieve the state's compelling interest in protecting the child, and that the statute does not impermissibly infringe upon the parent's liberty interest in the care, custody, and control of the child because the statutory scheme provides the parent with the requisite due process before parental rights can be terminated.

We also conclude that section 1516.5 is retroactive and applies after two years of the guardianship, regardless of whether any part of the two-year period occurred before the statute became law.

Here, the evidence supports the presumption that mother was presently unfit to properly care for the minor and that it would have been detrimental to the minor not to terminate mother's parental rights in order to permit the guardians to adopt the minor.

In the unpublished part of our opinion, we reject mother's other claim of error.

FACTS

Mother's relationship with R.S. (father) resulted in the minor's birth in March 2000. Mother has two other children, born in 1988 and 1998, as a result of her relationships with other men.

Mother has a long history of heroin addiction and has committed multiple criminal offenses, including assault with a deadly weapon. Father also was a drug user.

In early September 2001, father obtained custody of the minor after mother left a suicide message on his answering machine and law enforcement officers found known drug users around the children in mother's apartment. When father was unable to care for the minor, his sister and her husband (to whom we will refer as aunt and uncle, or as the guardians) filed a petition for temporary guardianship and gave notice of their intent to adopt the minor. The trial court issued letters of temporary guardianship on September 26, 2001.

In October 2001, mother and the minor's aunt and uncle met with a mediator, and mother agreed that the temporary guardianship should remain in effect. She also agreed that she would not have visitation until she could demonstrate to the trial court that she had enrolled in a drug rehabilitation program. The court entered an order adopting the mediation agreement.

In December 2001, mother consented to the aunt and uncle becoming the minor's permanent guardians, which they have been since that time. Because mother had not complied with the drug rehabilitation requirement, the trial court denied her visitation with the minor.

In early 2002, mother was charged with six criminal counts involving heroin. Because of her prior criminal history, she faced a possible life term under California's "three strikes law." Thus, she told the minor's aunt and uncle that she wanted them to adopt the minor. They filed a petition for independent adoption in May 2002. However, after mother entered into a plea agreement and was sentenced to only two years and eight months in state prison, she changed her mind and objected to the adoption.

In November 2002, father consented to the termination of his parental rights.

In January 2003, the minor's guardians filed a petition to terminate mother's parental rights on the grounds that mother had left the minor in their care for over six months, without any support or communication and with the intent to abandon the child (Fam.Code, § 7822) and the nature of her felony convictions showed her unfitness to have future custody and control of the minor (Fam.Code, § 7825).

The social worker reported in October 2003 that instead of completing a drug abuse treatment program, mother had relapsed into drug use, which resulted in a felony theft conviction. She was serving a 32-month sentence for the conviction, and her two older children were in a "long term guardianship" with mother's sister. According to the social worker, the minor was thriving in the nurturing environment provided by the aunt and uncle, who had been married for almost 20 years and had stable jobs. The social worker recommended that the court terminate mother's parental rights.

In February 2004, the trial court denied the petition to terminate mother's parental rights. Relying on In re Jacklyn F. (2003) 114 Cal.App.4th 747, 7 Cal.Rptr.3d 768, the court held that the judicial order establishing the permanent guardianship precluded a finding that mother had abandoned the minor within the meaning of Family Code section 7822, and that the nature of mother's felony convictions did not prove she was unfit to have future custody and control of the minor within the meaning of Family Code section 7825.

Mother was released from prison in February 2004. One week later, the guardians filed the petition at issue here, to declare the minor free from mother's care, custody, and control pursuant to Probate Code section 1516.5, which became effective on January 1, 2004. (Stats.2003, ch. 251 (Sen. Bill No. 182), § 11.) As noted previously, Probate Code section 1516.5, subdivision (a) provides that in a guardianship proceeding, the trial court may declare a child free from a parent's custody and control if (1) the parent does not have legal custody of the child, (2) the child has been in the custody of a legal guardian for at least two years, and (3) the child would benefit from being adopted by the guardian.

Mother opposed the petition on the grounds that (1) Probate Code section 1516.5 is unconstitutional because it does not require a finding of parental unfitness, (2) the statute cannot be applied retroactively, and (3) the guardians were collaterally estopped from relitigating mother's fitness as a parent.

At the hearing on the petition to terminate her parental rights, mother introduced evidence that she was in a residential drug treatment program where she was taking classes involving parenting skills, drug education, relapse prevention, and anger management. She also submitted a letter from a recovery advocate with the Female Offender Treatment & Employment Program (FOTEP), a program to help substance abusing female offenders reunify with their families. The letter stated that mother was in a FOTEP residential treatment program, was actively participating in group sessions, and was making "progress in her personal recovery. . . ."

According to mother, she originally agreed to the guardianship simply because she was going to be incarcerated and, thus, would be unable to care for the minor. In her words: "I chose to enter into a guardianship because I knew my parental rights would not be terminated in that type of relationship. Had Probate Code section 1516.5 existed at the time I was contemplating a guardianship, I probably would not have entered into one[.]" Claiming that the guardians had thwarted her efforts to have contact with the minor, and asserting that upon her release from prison she will be able to care for her, mother said she now opposes the guardians' adoption of the minor.

The social worker reported that the guardians "have clear criminal background checks and meet all requirements for adoption." They have a long-term marriage, stable jobs, and a large home. The minor, who had been in their custody since she was 18 months old, called her...