Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PP20050103
ROBIE, J.
Defendant James F., the natural father of Kaitlynn F. and Alexander F. (jointly, the children), appeals from a judgment under Probate Code section 1516.5 terminating his parental rights. Section 1516.5 allows the termination of parental rights in a guardianship proceeding if the parent does not have legal custody of the children, the children have been in the physical custody of the guardian for at least two years, and the court finds the children would benefit from being adopted by the guardian. James contends section 1516.5 is unconstitutional on its face, in violation of substantive due process principles, because it permits the termination of parental rights without a showing of current parental unfitness by clear and convincing evidence. We disagree and therefore will affirm the judgment.
All further statutory references are to the Probate Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Because James makes only a facial challenge to the constitutionality of section 1516.5, a relatively brief recitation of the facts will suffice.
“A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.] ‘“To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, petitioners must demonstrate that the act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.”’” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) In a facial challenge, “the challenger must establish that no set of circumstances exists under which the Act would be valid.” (United States v. Salerno (1987) 481 U.S. 739, 745 [95 L.Ed.2d 697, 707].)
In December 2003, James and the children moved in with James’s sister, plaintiff Mary Anne R. and her husband, plaintiff John R. At the time, Kaitlynn was seven years old and Alexander was two.
At the time, the children’s mother was in the hospital. She later died in May 2004.
In July 2004, James signed a document relinquishing care and custody of the children to John and Mary Anne. Around that same time, James moved out, leaving the children behind.
In June 2005, the court granted John and Mary Anne temporary guardianship of the children. In August 2005, the court made John and Mary Anne the children’s permanent guardians. At the same time, the court adopted a case plan for James developed by Child Protective Services (CPS) that imposed various responsibilities on him to reunify with the children.
In December 2005, James filed a petition to terminate the guardianship. A week later, CPS filed a motion to close the reunification case plan based on James’s lack of participation.
At a hearing in January 2006, the court found that James’s “efforts . . . to comply with the Family Reunification Services Plan” “have been at best minimal.” Based on that finding, the court granted CPS’s motion to close the plan.
In March 2006, the court dropped James’s petition to terminate the guardianship due to improper notice. In May 2006, James filed a second petition to terminate the guardianship. Following a hearing in October 2006, the court denied the petition.
In January 2007 -- after the children had been living with them for more than two years -- John and Mary Anne filed a petition under section 1516.5 to terminate James’s parental rights. A two-day hearing was held on that petition in November 2007. In closing argument, James’s attorney argued section 1516.5 “sets a very low standard” that “the children would benefit from adoption,” and if the court “were to look at that in a vacuum,” it would violate James’s “due process rights as a parent.”
The court took the matter under submission and a week later issued its ruling granting the petition. Among other things, the court noted that the children had resided with John and Mary Anne “exclusively since December of 2003,” that James “had minimal involvement with the children’s care and was an absent parent during various periods of time prior to mother’s death,” and that James “has done little as a parent for these children at any time during their short lives” and “has consistently left the parenting responsibilities to [others].”
The judgment terminating James’s parental rights was entered December 13, 2007. James filed a timely appeal from that judgment.
DISCUSSION
As we have noted, section 1516.5 allows the termination of parental rights in a guardianship proceeding if certain requirements are met. As we have also noted, on appeal James raises a facial challenge to the constitutionality of the statute. To prevail on this challenge, James must show us that under no circumstances will substantive due process principles allow a parent’s rights to be terminated in a guardianship proceeding without a showing by clear and convincing evidence of current parental unfitness. (See Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084; United States v. Salerno, supra, 481 U.S. at p. 745 [95 L.Ed.2d at pp. 707-708].) He has not made that showing.
In its entirety, section 1516.5 provides as follows:
There can be no doubt that natural parents have a fundamental liberty interest in the care, custody, and management of their children that is protected under the Fourteenth Amendment to the United States Constitution. (E.g., Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 606].) It is also true, as James notes, that a guardianship does not extinguish that interest. (Guardianship of Stephen G. (1995) 40 Cal.App.4th 1418, 1426.) But a guardianship does suspend that interest for an indefinite period by taking the care, custody, and control of the child ward away from the natural parent and giving those rights to the guardian. (Ibid.; see also Fam. Code, § 7505, subd. (a); § 2351, subd. (a).) Moreover, a guardianship may be imposed over the objection of a natural parent only upon a showing by “clear and convincing evidence that an award of custody to the parent would be detrimental to the child, and that an award to the prospective guardian is in the child’s best interest.” (Guardianship of Stephen G., supra, 40 Cal.App.4th at p. 1432; see Fam. Code, § 3041.) Thus, the question posed by James’s constitutional challenge to section 1516.5 is this: Where the interest of a natural parent in the care, custody, and control of his or her child has been indefinitely suspended by the institution of a guardianship, based on a finding by clear and convincing evidence that an award of custody to the parent would be detrimental to the child and that an award to the prospective guardian would be in the child’s best interest, and the child has been in the physical custody of the guardian for not less than two years, can the natural parent’s rights be terminated based on a determination that adoption of the child by the guardian would be in the child’s best interest, without a finding of current parental unfitness?
We do not address the constitutionality of section 1516.5 as applied to a natural parent who consented to the imposition of the guardianship because, as we have noted, James offers only a facial challenge to the constitutionality of the statute, and to prevail on that challenge he must show the statute can never be constitutionally applied, no matter what the circumstances may be. Thus, as long as the statute is constitutional when applied in cases involving contested guardianships, James’s facial challenge fails.
With this framing of the issue in mind, we turn to James’s arguments and authorities. He first cites Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551], implying that Stanley stands for the proposition that “a showing of unfitness [i]s a prerequisite to the severing of parental ties” in every case. (Underlining omitted.) Stanley does not stand for that proposition.
The question in Stanley was whether Illinois law, which allowed the children of an unwed father to become wards of the court upon the death of the mother without any actual showing of the father’s parental unfitness, was constitutionally repugnant. (Stanley v. Illinois, supra, 405 U.S. at pp. 646, 649 [31 L.Ed.2d at pp. 555, 557].) More specifically, Stanley involved Illinois statutes that allowed “the children of all parents [to] be taken from them in neglect proceedings, [upon] proof of such unfitness as amounts to neglect,” but at the same time allowed the children of unwed fathers to be made wards of the state in a dependency proceeding without any showing of neglect “on the theory that an unwed father is not a ‘parent’ whose existing relationship with his children must be considered.” (Id. at pp. 649-650 [31 L.Ed.2d at pp. 557-558].) “By use of this proceeding, the State, on showing that the father was not married to the mother, [did not] need [to] prove unfitness in fact, because it [wa]s presumed at law.” (Id. at p. 650 [31 L.Ed.2d at p. 558].)
Not surprisingly, the Supreme Court found the Illinois statutes -- the effect of which was to presume an unwed father’s parental unfitness -- flawed and concluded “that all Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody.” (Stanley v. Illinois, supra, 405 U.S. at p. 658 [31 L.Ed.2d at p. 563].)
Properly understood, Stanley does not stand for the proposition James suggests: that parental unfitness (whatever that concept may entail in a particular case) is a constitutionally mandated criterion for the termination of parental rights. Rather, Stanley stands for the proposition that where state law establishes unfitness as a criterion for the deprivation of custody, such unfitness actually must be shown, and cannot be simply presumed, before the children are removed from the natural parent’s custody.
That proposition does not control -- or even provide guidance -- here. First, a judgment terminating parental rights under section 1516.5 is not the same as an order depriving a parent of custody. Under California law, the deprivation of custody occurs when the guardianship is established, long before the termination of parental rights is ever sought under section 1516.5. Moreover, California law does not allow a deprivation of custody to occur based on a mere presumption, as Illinois law did in Stanley. Rather, as we have explained, the establishment of a contested guardianship requires a showing -- by clear and convincing evidence no less -- that an award of custody to the parent would be detrimental to the child and that an award to the prospective guardian is in the child’s best interest. (Guardianship of Stephen G., supra, 40 Cal.App.4th at p. 1432; Fam. Code, § 3041.) Consequently, Stanley provides no assistance to James in his facial constitutional attack on section 1516.5.
James next cites Quilloin v. Walcott (1978) 434 U.S. 246 [54 L.Ed.2d 511] for the proposition that a “best interest” finding is inadequate to “overrid[e] the constitutional right of parents who have not been shown to be unfit.” Like Stanley, however, when Quilloin is properly understood, it does not support James’s argument. Indeed, Quilloin actually defeats his argument.
In Quilloin, a man (Quilloin) and a woman (Ardell Walcott) had a child together, but never married each other and never established a home together. (Quilloin v. Walcott, supra, 434 U.S. at p. 247 [54 L.Ed.2d at p. 515].) When the child was almost three years old, Ardell married another man (Randall Walcott), and the child lived with the Walcotts from the age of four. (Id. at p. 247 & fn. 1 [54 L.Ed.2d at p. 515, fn. 1].) When the child was 11 years old, Ardell consented to Randall’s adoption of the child. (Ibid.) Quilloin “attempted to block the adoption and to secure visitation rights but he did not seek custody or object to the child’s continuing to live with [the Walcotts].” (Ibid.) “Although [Quilloin] was not found to be an unfit parent, the adoption was granted over his objection.” (Ibid.)
Before the Supreme Court, “The issue in th[e] case [wa]s the constitutionality of Georgia’s adoption laws as applied to deny an unwed father authority to prevent adoption of his illegitimate child.” (Quilloin v. Walcott, supra, 434 U.S. at p. 247 [54 L.Ed.2d at p. 515].) Under Georgia law, for an unwed father to acquire the authority to veto an adoption of his illegitimate child, the father had to “legitimate his offspring, either by marrying the mother and acknowledging the child as his own, [citation], or by obtaining a court order declaring the child legitimate and capable of inheriting from the father.” (Id. at p. 249 [54 L.Ed.2d at p. 516].) Quilloin “did not petition for legitimation of his child at any time during the 11 years between the child’s birth and the filing of Randall Walcott’s adoption petition.” (Ibid.) Quilloin “claim[ed] that he was entitled as a matter of due process and equal protection to an absolute veto over adoption of his child, absent a finding of his unfitness as a parent.” (Id. at p. 253 [54 L.Ed.2d at p. 518].) The Supreme Court disagreed, concluding that “under the circumstances . . . [Quilloin]’s substantive rights were not violated by application of a ‘best interests of the child’ standard.” (Id. at p. 254 [54 L.Ed.2d at p. 519].) The court explained its conclusion as follows:
“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 children’s best interest.’ [Citation.] 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 [Quilloin]. 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 v. Walcott, supra, 434 U.S. at p. 255 [54 L.Ed.2d at p. 520].)
Far from supporting James’s assertion that “a ‘child’s best interests’ finding” is inadequate to “overrid[e] the constitutional right of parents who have not been shown to be unfit,” Quilloin actually establishes the opposite conclusion -- that, in some circumstances, parental rights may be terminated and a child freed for adoption based on the best interests of the child, without a finding of parental unfitness. Thus, Quilloin defeats, rather than supports, James’s facial constitutional challenge to section 1516.5. If, as in Quilloin, the parental rights of a natural parent who has not been found unfit can be terminated based on the best interests of the child without violating that parent’s substantive due process rights, then section 1516.5 is not unconstitutional on its face for failure to require a finding of current parental unfitness.
Despite Quilloin, James turns to three California cases and three out-of-state cases to support his argument that parental unfitness is a constitutionally required prerequisite to the termination of parental rights. None of these cases deflects the impact of Quilloin, however.
First, James contends that under In re Carmaleta B. (1978) 21 Cal.3d 482, “the parental right to a legal relationship with the child is to be terminated only if the parent is found to be unfit and parental custody is found to be harmful to the child.” Not so. The issue in Carmaleta B. was whether substantial evidence supported the trial court’s findings that termination of parental rights was warranted under existing statutes based on cruelty and neglect (former Civ. Code, § 232, subd. (a)(2)) or inability to properly support or control due to mental illness (id., subd. (a)(6)). (Carmaleta B., at pp. 485-486, 489.) Carmaleta B. does not state any broad constitutional principle that a showing of current parental unfitness must be made in every case before a natural parent’s rights can be terminated.
Likewise, Adoption of Kelsey S. (1992) 1 Cal.4th 816 does not support James’s argument. The question in Kelsey S. was “whether the father of a child born out of wedlock may properly be denied the right to withhold his consent to his child’s adoption by third parties despite his diligent and legal attempts to obtain custody of his child and to rear it himself, and absent any showing of the father’s unfitness as a parent.” (Id. at p. 821.) Our Supreme Court concluded that “under these circumstances, the federal constitutional guarantees of equal protection and due process require that the father be allowed to withhold his consent to his child’s adoption and therefore that his parental rights cannot be terminated absent a showing of his unfitness.” (Ibid., italics added.) The Kelsey S. court did not purport to conclude that a showing of parental unfitness would be required in all circumstances; thus, while Kelsey S. might support an as-applied constitutional challenge to section 1516.5 in a particular case, it does not support a facial challenge to that statute.
The final California case on which James relies is Cynthia D. v. Superior Court (1993) 5 Cal.4th 242. Like the other two California cases, however, Cynthia D. does not support the argument that a finding of current parental unfitness is constitutionally required in every case before a natural parent’s rights can be terminated. “The sole issue raised in the petition for review in [Cynthia D. wa]s a due process challenge to the statutory provisions that allow[ed] termination of parental rights [in juvenile dependency proceedings] based on a lesser standard of proof than clear and convincing evidence.” (Id. at p. 245.) The court concluded that the termination of parental rights “based on a finding by a preponderance of the evidence that return of the child to parental custody would create a substantial risk of detriment to the child” “comports with the requirements of due process.” (Id. at pp. 250, 256.) The court did not conclude that a finding of current parental unfitness by clear and convincing evidence is constitutionally required in every case, and thus the court’s decision does not support James’s argument.
Turning to the out-of-state cases, James cites In re J. P. (Utah 1982) 648 P.2d 1364, in which the Utah Supreme Court held that “a statute authorizing the juvenile court to ‘decree an involuntary termination of all parental rights’ solely on the basis of a finding that ‘such termination will be in the child’s best interest’ violates the parent’s constitutionally protected rights.” (Id. at p. 1374.) J. P. is not persuasive here, however, because unlike the Utah statute at issue in that case, section 1516.5 does not allow the termination of parental rights based solely on a determination that the termination would be in the child’s best interest. Rather, section 1516.5 requires additional criteria as well -- namely, the natural parent does not have legal custody of the child, the child has been in the physical custody of a guardian for at least two years, and adoption by the guardian will be in the child’s best interest. Since the Utah statute at issue in J. P. did not include any such additional criteria, the decision in that case does not support James’s facial challenge to section 1516.5.
Next, James cites In re Adoption of Mays (1986) 30 Ohio App.3d 195 [507 N.E.2d 453]. Like J. P., however, Mays involved a statute that allowed for the termination of parental rights based “solely upon [the probate court’s] determination that [an] award [of permanent custody to a nonparent] is in the best interest of the child.” (Id. at p. 200.) We have explained already that section 1516.5 requires more than that, so Mays is inapposite.
Finally, James cites Petitions of Dept. of Soc. Serv. to Adoption (1983) 389 Mass. 793 [452 N.E.2d 497] in which the court held unconstitutional a statute that presumed the best interests of the child would be served by granting a petition for adoption if the child had been in the care of the Department of Social Services or a licensed child care agency for more than one year. (Id. at pp. 802-803.) Section 1516.5 does not contain, or rest on, any such presumption. Thus, this case, too, provides no support for James’s facial challenge to section 1516.5.
In summary, James has failed to show that section 1516.5 violates constitutional principles of substantive due process because it permits the termination of parental rights in a guardianship without a showing of current parental unfitness by clear and convincing evidence. On the contrary, Quilloin establishes that parental fitness need not be proven in all cases where the termination of parental rights is sought.
James offers a separately headed argument asserting section 1516.5 is unconstitutional because it does not require proof by clear and convincing evidence, but we need not address this argument separately because he still contends that what must be proved by clear and convincing evidence is parental unfitness. As we have determined already -- primarily based on Quilloin -- that constitutional principles do not necessarily require proof of current parental unfitness in order to terminate parental rights, James’s argument fails.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., BUTZ, J.
“(a) A proceeding to have a child declared free from the custody and control of one or both parents may be brought in the guardianship proceeding pursuant to Part 4 (commencing with Section 7800) of Division 12 of the Family Code, if all of the following requirements are satisfied:
“(1) One or both parents do not have the legal custody of the child.
“(2) The child has been in the physical custody of the guardian for a period of not less than two years.
“(3) The court finds that the child would benefit from being adopted by his or her guardian. In making this determination, the court shall consider all factors relating to the best interest of the child, including, but not limited to, the nature and extent of the relationship between all of the following:
“(A) The child and the birth parent.
“(B) The child and the guardian, including family members of the guardian.
“(C) The child and any siblings or half-siblings.
“(b) The court shall appoint a court investigator or other qualified professional to investigate all factors enumerated in subdivision (a). The findings of the investigator or professional regarding those issues shall be included in the written report required pursuant to Section 7851 of the Family Code.
“(c) The rights of the parent, including the rights to notice and counsel provided in Part 4 (commencing with Section 7800) of Division 12 of the Family Code, shall apply to actions brought pursuant to this section.
“(d) This section does not apply to any child who is a dependent of the juvenile court or to any Indian child.”