Guardianship to Adoption
Probate Guardianship to Adoption: How Guardians Inadvertently Circumvent Parents’ Fundamental Constitutional Rights to the Care, Custody and Control of their Children in Two Easy Steps. © 2015
by Linda J. Conrad
(This article appeared in the California Appellate Defense Counsel Newsletter.)
California has two statutory schemes in which the court may involuntarily remove children from parental custody and ultimately involuntarily terminate parental rights to free the child for adoption: the scheme for juvenile dependency proceedings under the Welfare and Institutions Code and the scheme for guardianship proceedings under the Probate Code. (Welf. & Inst. Code § 300 et seq.; Prob. Code §§ 1500 et seq.) Social workers, lawyers, and judges understand that under the Welfare and Institutions Code, parents are provided with a number of constitutional protections before their parental rights can be terminated under Welfare and Institutions Code section 366.26. However, guardianship proceedings do not provide parents the due process safeguards that are taken for granted in dependency proceedings, which prejudicially affects the decision to terminate parental rights under section 1516.5. (See, In re Guardianship of Christian G. (2011) 195 Cal.App.4th 581, 595, 605-606, 608-609 [Christian G.]; In re Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1535-1536, as modified (Jan. 6, 2012) [Myah M.]; In re Guardianship of H.C. (2011) 198 Cal.App.4th 1235, 1247-1248 [parents have no due process right to appointed counsel in guardianship proceedings].)
This result leads to similarly situated parents receiving disparate treatment depending on whether the children are removed by the state under the Welfare and Institutions Code or a private party under the Probate Code. Let us consider the hypothetical of Annabel, Brenda and their three-year-old daughters, Alice and Bonnie. Their children were removed due to allegations of drug abuse and incarceration. Alice was placed in foster care but Bonnie’s paternal grandmother immediately obtained custody and filed for guardianship.
After CWS filed a petition on Alice’s behalf, Annabel was provided an appointed attorney, social worker assistance, reunification services including an in-patient drug rehabilitation program, supervised third-party visitation, and regular review hearings to document her progress. If everything went well, after eighteen months, Alice was returned to Annabel under a plan of family maintenance and the dependency was dismissed six months later.
In contrast, under the guardianship proceedings, Brenda was not provided with an attorney, received no reunification services or in-patient drug treatment, regular review hearings, social worker assistance, and no transportation help. Monthly visitation, supervised and arranged by the guardian became sporadic. After two years, the guardian’s section 1516.5 petition for termination of parental rights was granted.
The interest of parents in the care, custody, and control of their children is the oldest of the fundamental liberty interests recognized by the United States Supreme Court. (Troxel v. Granville (2000) 530 U.S. 57, 65.) Thus, the due process clause (U.S. Const., 14th Amend.) “‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ [Citations.]” (Ibid.) And yet, guardianship proceedings, which can be the first step in the march to terminate parental rights, do not provide parents with any of the constitutional protections we take for granted in dependency proceedings.
There is one provision of the probate code that, if used, could provide parents with due process protections before terminating their parental rights. Section 1513 currently provides that where there are allegations of parental abuse and neglect, a referral may, in the court’s discretion, be made to child welfare services (CWS) for investigation and filing a dependency petition. With this provision, “[t]he Probate Code is intended to work hand-in-hand with the dependency laws as a cohesive statutory structure that aims to subject all cases alleging parental unfitness to the rigors of a dependency investigation.” (Christian G., supra, 195 Cal.App.4th at p. 605.) But even though “the interplay of the statutes strongly suggests that reunification services are to be offered to the family” (Christian G., supra, 195 Cal.App.4th at pp. 605-606), in the cases appointed appellate counsel see on appeal from termination of parental rights under section 1516.5, either the referral did not occur or CWS declined to file a petition on the assumption that the child will be protected in a guardianship.
However, this thinking is faulty. The failure of CWS to investigate and file a dependency petition where there are allegations of parental abuse and neglect results in a prejudicial denial of due process to the parents when the guardianship is established (Myah M., supra, 201 Cal.App.4th at p. 1532) that begins the inevitable march from the guardianship order to the termination of parental rights. (Christian G., supra, 195 Cal.App.4th at p. 605.) While it is fundamental that the state may not take the drastic action of terminating the parental relationship without providing the parent and child with a high level of substantive and procedural due process protections (In re David C. (1984) 152 Cal.App.3d 1189, 1208), these protections are regularly circumvented by filing a petition for guardianship with the ultimate goal of terminating parental rights.
When the probate guardianship scheme was amended to add a provision for terminating parental rights to free the child for adoption by the guardian in 2003 (§ 1516.5, added by Stats. 2003, ch. 251 (SB 182)), the requirements for termination of parental rights were relaxed from those found in the Family Code section 7800 scheme. Section 1516.5 allows termination of parental rights if the child has been in the physical custody of the guardians for two years and the court finds the child would benefit from being adopted by the guardian. (Prob. Code § 1516.5, subd. (a).) The guardian need not show that the parent is unfit, as required in the Family Code scheme, but needs merely show the child would benefit from being adopted by the guardian. (In re Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1124-1126 [“Ann S.”].)
Consequently, now that section 1516.5 has been added to the guardianship scheme, the constitutional need for due process protections during the initial stages of a guardianship proceeding has increased exponentially. (See, Cynthia D., supra, 5 Cal.4th at pp. 247-250, 253-256 [dependency scheme’s termination of parental rights provision does not violate constitutional due process because of the numerous substantive and procedural due process protections in the dependency scheme]; Emilye A., supra, 9 Cal.App.4th 1695, 1706-1707 [in light of addition of termination of parental rights provision to dependency scheme, there is a due process right to counsel at all hearings from disposition forward]; Ann S., supra, 45 Cal.4th 1110, 1134-1135 [indicating that the addition of section 1516.5 to the guardianship scheme may present issues of “whether the guardianship statutes afford sufficient protection to parental rights in advance of a section 1516.5 hearing”].)
In Ann S., the California Supreme Court upheld section 1516.5 against a facial challenge, concluding that it would not offend due process “in the generality or great majority cases,” because the requirement that the child have been in the guardian’s custody for at least two years means that a finding that parental custody would be detrimental had been made and not changed in that time. (Id., at pp. 1126-1132, 1136.) However, the court pointed out that its holding was a narrow one, concerning only the facial constitutionality of section 1516.5, and that it was not considering whether, in light of section 1516.5 being added to the scheme, other provisions of the guardianship scheme might now be subject to challenge as to whether they afforded “sufficient protection to parental rights in advance of a section 1516.5 hearing.” (Id., at pp. 1134-1135 [italics added].) In a companion case, the Supreme Court stated it was “conceivable that a parent faced with the termination of his or her rights under section 1516.5 would be in a position to assert a due process claim….” (In re Charlotte D. (2009) 45 Cal.4th 1140, 1148.)
In Christian G., the appellate court considered whether a parent is deprived of the “due process” constitutionally required in a probate guardianship proceeding if the court does not fulfill the referral requirement in section 1513, subdivision (c). (Christian G., supra, 195 Cal.App.4th at p. 588.) The appellate court held that, in light of the scarce substantive and procedural due process protections in the guardianship scheme compared with the juvenile dependency scheme, the subdivision (c) requirement is intended “to ensure that all claims of parental child abuse and neglect are investigated by the same agency – and subjected to the same standards” (Christian G., supra, 195 Cal.App.4th at pp. 596-605), and therefore the requirement is mandatory and failure to follow it is error reversible as a matter of law, as structural error and/or necessarily prejudicial in light of the difference in the level of due process afforded by the two statutory schemes. (Christian G., supra, 195 Cal.App.4th at pp. 606-611.)
Section 1513 was subsequently amended to make the referral discretionary. However, the same reasoning applies because of the fundamental rights at stake. Where there are allegations of parental abuse or neglect and the parents do not stipulate to the guardianship, it is a denial of due process to fail to refer the case to CWS and for CWS to reject a referral merely because an involuntary guardianship may be established.
The Christian G. appeal was from an order granting permanent guardianship, not from a subsequent order terminating parental rights under section 1516.5, as in this case. (Christian G., supra, 195 Cal.App.4th at p. 594.) However, parents are not provided counsel in guardianship proceedings, thus, this issue generally does not come to appointed trial or appellate counsel’s attention until the section 1516.5 petition for termination of parental rights. Nonetheless, Christian G.’s reasoning applies to a case in which the probate court grants guardianship and ultimately grants a section 1516.5 petition to terminate parental rights. It compels the conclusion that the failure to make the required referral deprives the parties of the due process protections necessary to support an order terminating parental rights.
For instance, in Myah M., the court considered whether the probate court’s failure to make the referral to CWS as mandated by section 1513, subdivision (c) prejudicially affected the decision to terminate the parents’ parental rights and violated their due process rights. (Myah M., supra, 201 Cal.App.4th at p. 1533.) The court rejected the parents’ arguments because they stipulated to guardianship. (Id., at p. 1534.) However, Myah M. reaffirmed the Christian G. holding that once the probate court receives “information constituting an allegation of [parental] unfitness, whether from the investigator’s report or from the pleadings themselves,” the court was “obligated to order the case referred to” the county agency designated to investigate potential dependencies. (Id., at p. 1534.) Myah M. left open the issue of whether the failure to refer to CWS prejudicially affects the decision to terminate parental rights and violates due process.
Although the court in Guardianship of H.C. rejected the argument that the possibility guardians could later seek adoption under section 1516 posed an equivalent threat to parental rights as an adverse dependency ruling that could lead directly to termination of parental rights, appointed appellate counsel have found the threat is in fact equivalent. In my cases, the appointment of a guardian, particularly where the guardian is the other parent’s relative, is the first step in the short and inevitable march to termination of parental rights. There are virtually no defenses to termination of parental rights under section 1516.5. Thus, the fundamental rights of indigent parents to the care, custody and control of their children are being chipped away by allowing adoption in guardianship proceedings without providing parents with the same due process and constitutional protections in the guardianship proceedings as are provided throughout the dependency scheme.
Where, in a guardianship proceeding, there is an allegation of abuse and neglect that brings a child within the dependency scheme of the Welfare and Institutions Code, the only way to provide fundamental due process to parents is to refer the matter to CWS for filing a petition if, absent the guardianship, the child cannot be protected. If that procedure is not followed, a parent has been denied the due process protections of the Welfare and Institutions Code and the Family Code procedures for terminating parental rights, and section 1516.5 is unconstitutional as applied.
