Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. P26210. Ronald W. Hansen, Terry K. Cole, Carol K. Ash and John D. Kirihara, Judges.
Judge Hansen ruled on the petition for appointment of a temporary guardian, granted the permanent guardianship for the girls and terminated the guardianship for the girls; Judge Cole granted the permanent guardianship for the boys; Judge Ash denied the petition for termination of guardianship; and Judge Kirihara granted the motion to declare Robert S. and Thomas D. free from the custody and control of the parents.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Objector and Appellant Sandra D.
Seth F. Gorman, under appointment by the Court of Appeal, for Objector and Appellant Gilbert D.
No appearance for Petitioner and Respondent.
OPINION
DETJEN, J.
Sandra D. (mother) left her four minor children with her sister, Barbara M., on August 13, 2007, because mother and her husband Gilbert D. (father), were homeless and without food. The following month, petitions were filed for Sherri M. (maternal aunt) and Joyce S. (maternal grandmother) to be appointed temporary guardians of the children. The court granted a temporary guardianship, followed by a permanent guardianship. At the request of Barbara M., the guardianship for the two older children, the girls, was dismissed and the girls were returned to mother and father. The proceedings as to Robert S. and Thomas D. continued, ending with an order declaring Robert S. and Thomas D. free from the custody and control of mother and father pursuant to Probate Code section 1516.5. It is from that order that mother and father appeal asserting that they were denied due process in the proceedings leading up to and including the termination of their parental rights.
Although Gilbert D. is the biological father of Thomas D. only, he has been married to Sandra D. for many years. He was treated throughout the proceedings as the father to all of the children and the parties did not contest his standing to contest this matter as to all of the children. We shall refer to him as father throughout this appeal.
All further statutory references are to the Probate Code unless otherwise indicated.
Respondent filed a brief that was stricken by this court. By order dated April 8, 2011, we consolidated the appeal of mother (F060073) and father (F060208).
The existence of probate guardianships predate the advent of the dependency statutes. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1121 (hereafter Ann S.).) They are “not initiated by the state, but by private parties, typically family members.” (Id. at p. 1122.) “Unlike dependency cases, they are not regularly supervised by the court and a social services agency. No governmental entity is a party to the proceedings. It is the family members and the guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited, or the guardianship continued, or an adoption sought under section 1516.5.” (Ibid.) They are not, however, without procedural and substantive requirements.
For example, notice of a hearing on a petition for appointment of a temporary guardian must be personally delivered to the child’s parents five days in advance of the hearing. Notice is excused if the petitioner can show good cause why notice should be excused. (§ 2250, subd. (e)(1).) If the reason for not providing notice is that the location of a parent is unknown, the petitioner must file a declaration as outlined in California Rules of Court, rule 7.52, to show the court that specific efforts were made to find the person.
Notice of the time and place of a hearing for appointment of a guardian, accompanied by a copy of the petition, shall be given to the parents at least 15 days before the hearing on the petition. Notice shall be served according to Code of Civil Procedure section 415.10 (personal delivery of a copy of the summons and of the complaint) or Code of Civil Procedure section 415.30 (service by mail), or in any manner authorized by the court. (§1511, subd. (a) and (b)(3).)
Section 1513 provides that, unless waived by the court, an investigator may make an investigation, and file with the court a report and recommendation concerning each proposed guardianship. Where the proposed guardian is a relative, the report is to be made by a court investigator. Subdivision (a)(2) of that section requires the report to contain a social history of the child and, when feasible, an “assessment of any identified developmental, emotional, psychological, or educational needs of the proposed ward and the capability of the petitioner to meet those needs.” Subdivision (a)(3) requires a discussion regarding the relationship of the child to the guardian, including the duration and character of the relationship. The report should contain a statement of the child’s attitude concerning the guardianship, “unless the statement of the attitude is affected by the proposed ward’s developmental, physical, or emotional condition.” Subdivision (a)(4) requires, unless waived by the court in cases involving relative guardians, an investigation or discussion regarding the “anticipated duration of the guardianship and the plans of both natural parents and the proposed guardian for the stable and permanent home for the child.” Subdivision (c) requires that, if a party to the proposed guardianship alleges the child’s parent is unfit, as defined by section 300 of the Welfare and Institutions Code, the case shall be referred to the county agency designated to investigate potential dependencies and precludes the completion of guardianship proceedings until the investigation required by sections 328 and 329 of the Welfare and Institutions Code is completed and a report provided to the court. Subdivision (h) mandates that, “In an Indian child custody proceeding, the person making the investigation and report shall consult with the Indian child’s tribe and include in the report information provided by the tribe.”
Since oral argument, the First District Court of Appeal has held that, when a probate court receives information constituting an allegation of unfitness, whether that information comes from an investigator’s report or from the pleadings themselves, the court is “directly obligated to order the case referred to CPS.” (Guardianship of Christian G. (May 12, 2011, A128108) ___Cal.App.4th___ [p. 21].)
The investigation is conducted by a social worker with the objective of determining whether child welfare services should be offered to the family and whether proceedings in juvenile court should be commenced. If the social worker does not proceed, the worker must provide reasons for not proceeding and notify the applicant of the decision.
Section 1513, subdivision (b), provides that, at the court hearing, “[t]he person preparing the report may be called and examined by any party to the proceeding.”
Family Code section 3043 requires that, in determining the person to whom custody should be granted, the “court shall consider and give due weight to the nomination of a guardian of the person of the child by a parent.”
Section 1514, subdivision (b) states that, in appointing a guardian, the court is governed by certain provisions of the Family Code including chapter 2, of part 2 of division 8, commencing with section 3040. Family Code section 3040 provides an order of preference for the custody of children according to their best interest with the first preference being “[t]o both parents jointly... or to either parent.” Family Code section 3041, subdivision (a), requires that, “[b]efore making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.” Subdivision (b) states that such a finding must be supported by clear and convincing evidence.
Section 1516.5 was enacted in 2003 to provide an avenue by which parental rights could be terminated after two years of probate guardianship if adoption by the guardian was in the child’s best interest and the child was not a dependent of the juvenile court or an Indian child. (Ann S., supra, 45 Cal.4th at p. 1118, § 1516.5, subd. (d).) Termination of parental rights at that stage of a probate guardianship does not necessarily require proof of parental unfitness (In re Charlotte D. (2009) 45 Cal.4th 1140, 1147 (hereafter Charlotte D.)) and the statute is facially constitutional. (Ann S., supra, 45 Cal.4th at p. 1118.) But, “parents may challenge the constitutionality of the statute as applied to them.” (Charlotte D., supra, 45 Cal.4th at p. 1147, citing Ann S., supra, 45 Cal.4th at p. 1132.)
Section 1516.5 provides: “(a) A proceeding to have a child declared free from the custody and control of one or both parents may be brought in accordance with the procedures specified in Part 4 (commencing with Section 7800) of Division 12 of the Family Code within an existing guardianship proceeding, in an adoption action, or in a separate action filed for that purpose, 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.”
Section 1516.5, subdivision (b), provides that the court shall appoint a court investigator to prepare a report for a hearing to declare a child free from the custody and control of one or both parents. Family Code section 7851 requires the investigator to file a written report. That report must include the investigator’s findings regarding the factors set forth in subdivision (a) of section 1516.5. Subdivision (c) of section 1516.5 provides that the rights of the parents include the rights provided in part 4 of division 12 of the Family Code, commencing with section 7800. If the child is over the age of 10 years, a citation is to issue requiring the presence of the person having custody or control of the child to appear with the child. (Family Code § 7880, subd. (b).) Family Code section 7891 requires that such a child (over the age of 10 years) shall be heard by the court in chambers regarding the matter and the court shall inform the child of the right to attend the hearing. Counsel for the child may waive the hearing in chambers of the court.
None of these requirements were met in this case.
No State shall deprive any person of “life, liberty, or property, without due process of law....” (U.S. Const., 14th Amend.) The due process clause “‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ [Citations.]” (Troxel v. Granville (2000) 530 U.S. 57, 65.) Perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court is the interest of parents in the care, custody, and control of their children. (Ibid.) “‘[P]arental status termination is “irretrievabl[y] destructi[ve]” of the most fundamental family relationship.’” (In re R.H. (2009) 170 Cal.App.4th 678, 705.)
Specifically, as to section 1516.5, it is “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....” (Charlotte D., supra, 45 Cal.4th at p. 1148.) “Due process requires ‘“some showing of unfitness”’ before a custodial parent’s rights are terminated. [Citations.]” (Ibid.) A “fully committed, responsible, and capable parent” who is a party to an extended probate guardianship may have a supported claim that the best interest of child standard is unconstitutional as applied to him or her. (Charlotte D., supra, 45 Cal.4th atpp. 1148-1149.)
Under the specific circumstances of this case, we conclude appellants were deprived of due process. Accordingly, we reverse.
THE TRIAL COURT PROCEEDINGS
I. Failure to comply with sections 2250 and 1511.
On September 10, 2007, Sherri M. and Joyce S. filed a petition for appointment of temporary guardianship and a petition for permanent guardianship of Samantha M. (born in 1994), K.S. (born in 1998), Robert S. (born in 1999) and Thomas D. (born in 2002). The petitions explained how the children came to be at the home of Barbara M. and stated that the whereabouts of mother and father were unknown.
It was claimed in the petitions that mother’s family had not had contact with mother or the children for five years because mother and father had a long history of drug abuse; that mother told Barbara M. that Child Protective Services (CPS) was looking for her children and she wanted to keep them out of foster care; that when the children were received into Barbara M.’s home, they had head lice, were hungry, and did not have any clothing; that mother informed Barbara M. that Robert S. and Thomas D. needed their medication for Attention Deficit Hyperactivity Disorder and Thomas D. was in need of his seizure medication; and that the children had made statements to Barbara M. indicating they had suffered abuse and neglect.
Notices of the hearing on the petitions were filed at the same time the petitions were filed. The proof of service portion of each document was blank and there is nothing in the record to demonstrate that parents received notice and/or a copy of the temporary or permanent guardianship petition.
Just prior to the hearing for the appointment of a temporary guardian, mother and father called Barbara M. to say they had suitable housing and were going to pick up their children. Barbara M. told them to come to court instead. At the hearing for permanent guardianship, the parents complained to the court that they had never received any papers.
The requirements of sections 2250 and 1511 were not satisfied.
II. The hearing for appointment of temporary guardian.
Mother, father, Sherri M., Joyce S., and Barbara M. were present at the hearing for the appointment of a temporary guardian, held September 14, 2007. The witnesses were sworn and testimony was taken informally by the court in a random question and answer type of format, with the court asking the questions. The parents testified that they had been living together in a mobile home park since the 11th of September. They had previously lived in hotels.
Father said that he was on disability and mother had lost her job earlier in the year because she had been sick. Father claimed that they had set up family counseling for the entire family. Father said he had a prior conviction for receiving stolen property but had not been in trouble with the law for seven years. Mother said she did not have a criminal record. The parents claimed there really had not been a drug problem, but there had been a problem paying their bills and that was when they asked Barbara M. to watch the children.
Mother handed the court a letter that Barbara M. had signed stating she was only taking care of the children until they found a place to live. Mother said she had called her sister and said they had a place and were ready for the children to come home. Barbara M. told mother to come to court today.
Sherri M. and Barbara M. then spoke to the court making allegations amounting to assertions of parental unfitness. Sherri M. testified that the family had not seen the children for five years because they did not approve of the parent’s lifestyle. The parents had then stopped all contact with the family. Sherri M. testified the children had been off their medications (for attention deficit disorder) when they were left at Barbara M.’s house and the children had had absences from school. Sherri M. said that Thomas D. told her that only Robert S. received spankings at their parent’s house. Barbara M. asked to make a statement. She began by saying she worked for social services. Barbara M. said that mother had called her and said they were homeless and wanted to know if she would take the children. Barbara M. took the children into her home, fed them, and bought them new clothes and supplies for school. She claimed that on August 13, 2007, she paid for a motel for the parents because they had no money or food and had already used all of their $2,000 of aid for the month. Barbara M. had tried to counsel the parents regarding their drug use. The parents had acknowledged their drug use, and their drugs of choice were methamphetamine and marijuana. She said the parents had refused to take a drug test for a social worker and had also refused family maintenance. The children had disclosed to Barbara M. that when they stayed at their uncle’s house the boys had to sleep on the bathroom floor with a pillow and blanket. The children hoarded food, and Robert S. had terrible nightmares.
Father responded they were not rich, they did not have jobs, but they were doing the best they could for their children. In addition, he pointed out that they had given Barbara M. permission to have their children temporarily, and had not given permission for anyone else to care for them. He said the caregivers would not tell them where the children were and they were not able to talk to their children.
The court ruled, “it would be harmful and detrimental for these children to be with the parents at this time and grants temporary guardianship.” In addition, the court found the parents had a right to know where their children were and ordered that the parents be given phone visits. The court asked the parents if they were willing to take drug tests. They both said that they would test. The court then told them that the test was a hair follicle test and would uncover drug usage going back 90 days. The court asked if the test would show anything and father responded that hopefully the test would be clean. The parents then agreed that any test going back 90 days would be positive for methamphetamine and that they both had used about three or four weeks ago.
The court informed the parents that a court investigator would be contacting them to gather information and report on it at the next hearing.
III. Failure to meet the requirements of section 1513.
A report was prepared by the court investigator for the permanent guardianship of the children. The report began with a general history of the case, which appears to be primarily gleaned from the information contained in the petition for temporary guardianship. The investigator visited the home of Sherri M., and interviewed Robert S. and Thomas D. In addition, he visited with the parents.
The investigator reported that the parents had rented a three-bedroom trailer that they felt was adequate to care for the minors. The investigator noted that father was not able to produce a rental agreement or receipt. The parents both told the investigator that they had used methamphetamine over a month before, father was not employed and sometimes held a sign reading “want job” on the street. Father was receiving Social Security disability.
Father told the investigator that he had told the judge he had screwed up. The investigator stated, in his report, that mother and father “have done more than ‘screw up.’ … The parents are drug addicts, and cannot care for themselves, let alone four children. This investigator visions the parents, in his mind, as persons walking with shopping carts near the freeway exits begging for food or money holding signs such as ‘will work for food’. This is no life for the children. They deserve better and a chance. They are very lucky that the extended family decided to intervene and take control.”
We do not find what the investigator “visions... in his mind” to be relevant to the proceedings or a fact gleaned from a proper and thorough unbiased investigation.
Father admitted he held a sign by the freeway seeking work. The report had a document attached to it that included “[t]he following statements have been made by the children while in my care[.]” At the end of this list it stated that “On 9/25/07, a friend of mine who is a supervisor social worker and knows Sandy due to being out on a CPS referral in the past, saw Sandy and Gilbert standing on the Yosemite freeway off ramp begging for money.”
The investigator reported that mother and father had 30 CPS referrals in the past ten years. He said that one was inconclusive, three were substantiated as substantial risk for sexual abuse, and there were several concerning general neglect. The investigator provided no further details regarding the referrals.
From this brief summary, written with a complete absence of factual support, it is impossible to determine the nature of these referrals. For example, it is possible that some or all of these referrals involved someone who no longer lived in the household. We note father testified at the termination of parental rights proceeding that when mother and father allowed Sherri M. and Barbara M. access to the children the parents were continually paid visits by CPS. The complaints were determined to be unfounded. Once the aunts were cut off from visitation, no further referrals occurred. Also, at a later proceeding there was an accusation by Barbara M. that mother’s stepson may have sexually abused one of the children.
The investigator said that Sherri M. resided in an average three-bedroom home, claimed to be in fair health, was currently in college and was not employed. She received SSI benefits and public assistance. She lived with her boyfriend who was on disability. The parents lived in a three-bedroom trailer house “located in an area of town that appears to be run down.”
The investigator concluded that the parents were not able to provide care due to their use of illegal substances and a history of homelessness. He felt it was in the minors’ best interest to remain with their current caretakers under permanent guardianship. Attached to the report were additional facts regarding the children, including statements made by the children “while in my care.” There was no reference in the report as to who made this list.
The report of the investigator was lacking in several respects. The report did not contain the social history of the children or an “assessment of any identified developmental, emotional, psychological, or educational needs of the proposed ward and the capability of the petitioner to meet those needs” as required by section 1513, subdivision (a)(2). There was nothing in the report resembling an assessment of the needs of the children and the capability of Sherri M. to meet those needs.
Also lacking from the report was a discussion regarding the relationship of the children to the guardian and the duration and character of that relationship; nor did it contain a statement of the children’s attitude concerning the guardianship as required by section 1513, subdivision (a)(3). While the investigator did discuss that Sherri M. was the aunt to Robert S. and Thomas D., there was no information regarding the duration and character of that relationship. As testified at a later hearing by father, and not refuted by Sherri M., the children had not seen their aunts for approximately five years prior to when they were dropped off at Barbara M.’s house.
The report did not contain an investigation or discussion regarding the “anticipated duration of the guardianship and the plans of both natural parents and the proposed guardian for the stable and permanent home for the child” as required by section 1513, subdivision (a)(4). The report was seriously lacking in this area. Although the court may waive this requirement for cases involving relative guardians, there was nothing in the record indicating that the requirement was so waived.
What the report did contain, however, were allegations of unfitness. In spite of this, the court did not refer the case to the county agency designated to investigate potential dependencies as required by section 1513, subdivision (c). Without that referral, there was no opportunity for the department to determine if proceedings should be commenced or the family offered services.
When there are allegations of unfitness, a guardianship order entered without such a referral is invalid. (Guardianship of Christian G., supra, ___Cal.App.4th___ [p. 24].)
In a dependency proceeding, parents are provided with proper notice, counsel, services, and review hearings in accordance with the dependency rules. None of these were provided to these parents at any time throughout the proceedings, with the exception of counsel and notice, which were provided only for the termination hearing. In addition, dependency proceedings are instituted to protect the children, to make sure children are not returned to their parents until it is safe. These children did not receive procedural safeguards implemented in dependency proceedings. Because the matter was not referred to child welfare services for an investigation pursuant to Welfare and Institutions Code section 329, the department was not given the opportunity to act if it found it was necessary to do so.
Finally, there was nothing in the report demonstrating that any inquiry had been made as to whether any of the children were Indian children as required by section 1513, subdivision (h) or as relevant to section 1516.5, subdivision (d).
Father has asked this court to take additional evidence regarding the Indian heritage of the children. Mother joined in the motion. We deny the motion because the court on remand is ordered to comply with the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
IV. Failure to meet the requirements of sections 1513, 1514, Family Code sections 3040, 3041, 3043, and the state and federal constitutional right to due process.
A hearing was held on October 26, 2007, to determine whether a permanent guardianship would be granted.
Petitions were filed in October 2007 seeking to have Jerry G. and Sheila G. substitute in as guardians for the girls in the place of their grandmother, Joyce S. Because nonrelative guardians were being substituted for the girls, the court continued the hearing, as to the girls only, to obtain an investigation from the Department of Social Services as required by section 1513, subdivision (a).
The court proceeded to hear the matter regarding the boys. Present at the hearing were Sherri M., Barbara M., Jerry G., Sheila G., and the parents. In addition, a court investigator was present, but the investigator who prepared the report was not.
The absence of the investigator who authored the report hindered compliance with the provision in section 1513, subdivision (b) that allows the person preparing the report to be called and examined by any party to the proceeding. Additionally, it does not appear that the parents were informed or otherwise made aware that they could call and examine the investigator. Father did complain at the hearing regarding the brevity of the visit by the investigator to their home.
Father told the court that they had been attending their classes every day, and that their teacher was present in court. Father said he had receipts from their landlord regarding their three-bedroom home. Mother stated they would do whatever was asked of them to bring their children home.
Mother said she had a letter from her father and stepmother indicating their willingness to take the girls into their home. Contrary to Family Code section 3043 that requires the court to “consider and give due weight to the nomination of a guardian of the person of the child by a parent, ” the court did nothing in response to mother’s letter.
The court stated that it was sure everyone hoped the parents would get squared away and have their children back.
The parents complained that they had not received any paperwork and that they had asked for a drug test, but they had not received it. Father also said when the investigator came to their home he looked at the rooms and left after only a few minutes.
There was a discussion regarding phone visitations with the parents complaining that they were not getting to visit on the phone with the children, and with Sherri M. stating that the parents were saying inappropriate things during the phone calls. Other accusations went back and forth.
The court stated that what the parents wanted was not important (again contrary to Family Code section 3043) and that what was important was the children’s best interests.
At one point the court told father this was the last statement he could make and matters would not bounce “back and back.” Sherri M. explained why she wanted phone and in-person visitation cut back and stated the parents had threatened to run off with the children and also promised things to the children. Father disagreed and apparently made some noises in response. The court stated to father, “[t]he next sound out of you you’ll be out of this courtroom, you understand? You may not disrupt this proceeding with your grunts and your noises, understand?” Sherri M. was allowed to continue her reasons why the parents should not be given phone visits, detailing what the parents would say on the phone. Mother asked if she could respond. The court responded, “No, you may not. I’ve heard from you. No. Everybody is not going to respond to everybody. I’m not going to sit here all day.”
“The state and federal Constitutions guarantee no state shall deprive parents of [their fundamental] interest in their children without due process of law, which includes the right to confront and cross-examine witnesses in dependency proceedings.” (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777.) This right should not be any less in a guardianship proceeding, particularly at the early stage of the proceedings when it is being determined if a guardianship should be granted and before the focus shifts to the child’s need for permanency and stability. (See In re Thomas R. (2006) 145 Cal.App.4th 726, 733.) By telling the father that he would be removed from the courtroom if he made any further noise, and by refusing mother’s request to respond to accusations made by Sherri M., the court effectively deprived the parents of their fundamental interest in their children without due process of law.
Family Code section 3041, subdivision (a) requires, in addition to a finding that granting custody to a nonparent is required to serve the best interest of the child, a finding (supported by clear and convincing evidence) that “granting custody to a parent would be detrimental to the child.” (Ibid.) “‘[D]etriment to the child’ includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents.” (Fam. Code, § 3041, subd. (c).) “[T]he Legislature has determined that the critical finding of detriment to the child does not necessarily turn on parental unfitness. It may be based on the prospect that a successful, established custodial arrangement would be disrupted. [Citation.]” (Ann S., supra, 45 Cal.4th at p. 1123.)
At the time of the guardianship hearing, the boys had been away from their parents and in the home of Barbara M., and then Sherri M., for approximately two months. This was not a substantial period of time, especially when Barbara M. and Sherri M. had not seen the children for the preceeding five years. The boys first lived with Barbara M. and then moved to Sherri M.’s during the two month period. We would not characterize the arrangement here, at the time of the permanent-guardianship proceeding, as a “successful, established custodial arrangement.” (Ann S., supra, 45 Cal.4th at p. 1123.)
The court did not make a statement at the hearing that proper notice had been given, there was no evidence of proper notice in the clerk’s transcript (although on the order granting guardianship a box was checked that indicated proper notice had been given). The court did not consult the order of preference provided in Family Code section 3040 or make any findings supported by clear and convincing evidence as required by Family Code section 3041, subdivision (a).
The court ordered supervised visitation for the parents. In addition, the court granted temporary guardianship of the girls to Jerry G. and Sheila G. and permanent guardianship to Sherri M. of the boys. Mother inquired whether she would be provided a drug test. The court responded, “Just because you walk into a court and say -- make somebody do a drug test doesn’t mean a drug test is going to get done.”
When a guardian has been appointed, neither parent retains legal custody. (Fam. Code, § 7505, subd. (a).)
Family Code section 3041.5 allows the court to order a parent seeking custody or visitation with a child to undergo testing for illegal use of controlled substances. The court may order either party, or both parties to pay the costs of the testing.
An order was filed appointing Sherri M. as the guardian for Robert S. and Thomas D. and letters of guardianship were issued.
V. The court action regarding the girls.
A hearing was held on January 4, 2008, regarding the petition for Jerry G. and Sheila G. to become permanent guardians of the girls. At the hearing, mother told the court that they were attending parenting classes, going to NA classes, and going to counseling. Father was seeing a counselor for anger management. Mother informed the court that they wanted their children back and had a home for them. To this the court responded, “Keep up the good work. You’re going to have to prove it though. Right now the best interest of the children, there is sufficient cause to warrant the guardianship.” Father offered to provide the certificates to prove their participation. Again the court responded, “Keep up the good work. [¶]... [¶] But you’re going to have to prove yourself.”
The court granted the permanent guardianship regarding the girls, finding it would be harmful to the children to be with their parents at this time. Barbara M. objected to the parents having any visits and insisted that the children needed to move forward. The court noted that parental rights are fundamental rights and weekly visits needed to continue. Barbara M. responded that the visits had been affecting her life and then noted that the parents had still not produced a clean drug test. The court set a review hearing in three months.
This finding was made regarding the girls, not the boys.
Father thanked the guardians for keeping an eye on their children. Mother stated that they had asked for a drug test and had gone to CPS asking for a drug test. The court responded that they were going to have to pay for a drug test. Mother responded that they could not afford to do that. The court responded, “Somewhere along the line you’re going to have to produce a clean drug test.” Mother inquired if three months was a sufficient time to produce a drug test. The court responded, “Well, I’m just saying somewhere before these kids go back I’m going to have to see a clean drug test. I’m not saying when. I’m not saying these kids are going to go back in 3 months. I’ll tell you, frankly, 3 months is not enough time. You’ve got to prove yourself.”
Mother then asserted that Sherri M. had stopped the phone privileges with the boys because on one occasion she had put her stepson on the phone to say hello to Robert S. Barbara M. responded that the phone visitation had been contained in the first court order and they had not been violating any current court order. She reiterated that they were trying to help the children feel comfortable in the home and abide by the rules of their new homes.
The court then told the mother, “[Y]ou can understand the need that these kids have to understand that they have to abide by the rules of the guardians’ home and not think that this is just temporary and we’re going back to mom and dad. That probably won’t happen, probably. You’re going to have to prove yourself.” The court then cut down the phone visits from twice a week to once a week. Barbara M. complained that the phone visits disrupted the children’s ability to stay on schedule. She said that when the phone calls stopped, the nightmares and wetting of the bed by one of the boys stopped. Barbara M. then stated that the stepson that was put on the phone had previously exposed the children to sexual abuse. The court ordered weekly in-person visitation and once-a-week phone visitation, with parents paying for the cost of the in-person supervised visitation.
On February 22, 2008, a petition for termination of the guardianship of the girls was filed. On February 27, 2008, the court granted the termination of guardianship for the girls. There was no discussion regarding the reasons for the termination. Mother inquired when they would be returning to court regarding the boys.
In a report prepared by counsel for Robert S. and Thomas D. it was claimed that the guardianship for the girls was terminated because the calls and visits by mother with the girls was causing distress to the children and the children could not move on. The girls wanted to be with their mother.
VI. Sherri M.’s request to reduce the parents’ visitation with the boys.
On October 7, 2008, Sherri M. filed a petition for modification of visitation orders asking that visits be reduced from weekly to once a month. In the petition, she alleged that the parents had missed several visits and had showed up late several times. She claimed that on one occasion when she asked mother to please be on time mother responded (in the boys presence), “‘you are lucky I am even here.’” Sherri M. asserted that Robert S.’s counselor had indicated that he had a heightened “mode of anxiety” because of the visits and she claimed that if the parents missed visits, the change in the boys’ behavior was “for the good.” Sherri M. accused the parents of stopping the recommended counseling for the girls after they were returned to them and claimed that father had admitted to abusing Robert S. and doing bad things to him. In addition, Sherri M. alleged that it was upsetting when the parents missed a visit and also that the visits interfered with their sports practices. In conclusion, Sherri M. claimed mother and father had not done anything to try and regain custody of the boys and it was time to allow the boys to move on with their lives.
The court held a hearing on October 17, 2008, based on the request for reduced visitation. (This was the first hearing where the record reflects that proper notice was provided to parents.) The court reviewed reports from the visitation center. Sherri M. then told the court that the boys had lived with her for over 14 months and the parents had not tried to get them back “one time.” She also claimed the parents had admitted to abuse but had not done any rehabilitation and that father had not presented a clean drug test. She said the children still had nightmares and had behavioral problems after their visits with the parents and, when they did not have visits, their behavior improved. She detailed the problems the boys had in school and the progress they had made. She argued it was in the children’s best interests to decrease visitation.
The court asked the parents if they wished to respond. Mother replied that she had letters from counseling, evidence of completion of parenting classes, and the person from the visitation center was present and would testify. The court reviewed the letters and noted the parents had been faithfully attending a recovery program for the last three months, they were receiving counseling, their daughters were receiving counseling, and the family had been attending church.
Annette Jenkins, from the visitation center, testified that there had been some problem with the parents coming late to visits, but they had always called to say they would be late. She said their guidelines allowed them to be late and the parents had complied with the guidelines. The court questioned if the visits had improved or were still chaotic. She responded that it was less chaotic because it was now only the parents and the two boys. It was chaotic before because the room was not big enough to hold that many people when the girls attended.
The court said that, based on the letters, it looked like the parents were trying to improve and were trying hard. The court noted that it was important to maintain the parent-child relationship and denied the petition for modification of visitation.
VII. The parents’ request to terminate the guardianship of the boys.
On January 20, 2009, the parents filed a petition for termination of the guardianship. Attached to the petition was a letter supporting their request. In the letter they detailed the background of how their children became involved in guardianship proceedings, as well as, information on the progress made by the parents. The parents indicated that their daughters missed their brothers very much and they would like to have the family back together in a complete unit.
The court may terminate a guardianship if it determines “that it is in the ward’s best interest to terminate the guardianship.” (§ 1601.)
Sherri M. filed a response to the parents’ petition. Again, she reiterated that the parents were long-time drug abusers and were not capable of taking care of the boys. She refuted all the claims made by the parents in their petition. She attached letters from the teachers of Robert S. and Thomas D. indicating that the boys had made great, positive progress since they had been in her care.
On February 13, 2009, the court referred the matter to the court investigator for a report and recommendation regarding the request for termination of guardianship. Sherri M. asked that counsel be appointed for the boys, the court agreed and appointed counsel. The parents complained to the court that Sherri M. had been denying them the opportunity to talk to the boys when they called. Sherri M. said that she had not been picking up the phone when the parents called because the boys did not want to talk to their parents. In addition, sometimes she was not home when the parents called. The court continued the matter.
On March 5, 2009, parents filed a petition seeking visitation on the weekends in their home. The matter was continued because the report the court had ordered was not yet prepared.
The attorney for the minors filed a report. In preparing the report the attorney met with the boys, interviewed Sherri M., interviewed mother and father, observed the parents’ home, talked to the therapist, spoke to character witnesses for the parents, spoke to the teachers of Robert S. and Thomas D., conferred with the court investigator’s office, met with Barbara M., reviewed visitation reports, reviewed documents provided by the parents, and reviewed the court file.
The attorney’s report stated that Sherri M. had reported that the boys exhibited negative and regressive behavior following visitations, that the boys suffered extreme neglect during their early years, that Robert S. bore the brunt of physical abuse administered by father, and that the boys had made tremendous progress since being placed with her.
The report detailed the parents’ substance abuse and also set forth the numerous classes and services they had been involved in. The parents were tested for drugs using a hair follicle test on March 11, 2009. The results were negative. Father had a previous test that was positive for THC (marijuana) in February 2008. Counsel indicated that the parents resided in a clean and furnished apartment with the two girls and there was a room in the apartment fixed up for Thomas D. and Robert S. While minors’ counsel noted a deep commitment to the parents’ faith, staying clean, and caring for their children, she also noted that parents had demonstrated virtually no insight into how their abuse and neglect affected the minors and no insight into how to address the boys’ special needs.
According to minors’ counsel the parents were tested because father’s three older children had been removed from their mother’s care by CPS and father requested placement of the children in his home. His request was denied, but he was ordered to participate in a reunification service plan.
The report stated that Robert S. and Thomas D. told their counsel they did not want to leave the home of their guardian, but that visiting with mother and father was okay. Robert S. did not want to visit as frequently. Counsel noted that neither minor was of sufficient age or capacity to reason so as to form an intelligent preference as to custody and visitation.
The report contained the therapist’s opinion that the boys had special needs and it would be in their best interest to be in the primary care of a person with a high level of parenting ability. The therapist believed that some of Thomas D.’s behavior could be attributable to issues arising from his early years of abuse and neglect. The therapist opined that it would be in the minors’ best interest to not have any visitation for six months because weekly visitations caused set-backs to their progress. The therapist recommended strictly supervised visits once a month and no telephone visitation.
Minors’ counsel concluded, in her report, that the parents had made genuine progress in turning their lives around, but that the minors were still suffering the effects of early childhood parental abuse and neglect. She recommended that the guardianship not be terminated because the parents lacked insight into how their behavior harmed the children and what they needed to do to address the children’s special needs.
A hearing on the parent’s petition to terminate the guardianship was held on May 18, 2009. While the court noted that it had received a report from minor’s counsel, there was no indication that the court investigator’s report was prepared or filed. No report appears in the record.
The person who supervised the visits between the children and their parents testified. She stated that the parents had been visiting for over a year, got along with the children, and the visits had gone well with the exception of the times the children were overworked. The supervisor did not know if they were overworked because of the visits or because of something occurring prior to the visits. The children had asked not to go to the visits, but the visits had been court ordered so the supervisor told them they had to go.
A person for the church testified that he had seen a change in mother and father. They had volunteered their time and had gotten more and more involved. In addition, they had attended church and participated in different church functions. They had attended a program that was not just drug rehabilitation, but also addressed any self-help issues a person had. The church member testified that he had seen tremendous participation on the part of the parents. The girls had also been involved at church.
Mother’s sponsor in a program testified that she had seen a change in the parents. Mother had progressed so far that she might become a program leader. She testified that the parents treated their daughters very well.
Father admitted he took the wrong road and abused drugs and alcohol, but he had changed his life. He stated he did not understand how they could have custody of their daughters, but be denied custody of their sons.
The pastor of the church testified that both girls had been very involved in helping out at the church and she had never seen the parents mistreat the girls. Another pastor testified that mother and father had become two of the most faithful people in his church. They held the position of ushers in the church, which was a trusted and valuable position. They were trusted with the church money they had collected. The pastor had complete confidence in the parents and had seen them grow in maturity.
Before letting mother and father make final comments, the court began by setting the following parameter: “the issue is not whether you’re fit or unfit. I believe your witnesses. I believe you have changed, you’re doing well, that you’re handling your daughters appropriately. But for purposes of this hearing, my concern is what is the best interest of the minor children.”
The court explained to the parents that the law had changed and while previously the court would have had to find that they were unfit parents, the question now was whether it was in the best interest of the two boys in this case to terminate the guardianship. The court believed it would not be healthy to force the children to go back home because they did not want to go back home.
The court found the parents were missing the point which was not what they had done in their lives, but what was best for Robert S. and Thomas D. The court denied the parents’ request to terminate the guardianship. The court reduced visitation to once per month and ordered no telephone visits. When mother questioned how this would give the parents a chance to show the boys that they loved them, the court responded that the limited visitation would be for six months and after that the court would have everyone come back to see how the boys were doing. The court set the hearing for November 13, 2009, and stated it was going to refer the matter to the court investigator for a follow-up report for the court file.
VIII. The order declaring the boys free from parental control. Failure to meet the requirements of section 1516.5 and Family Code sections 7851, 7880, subdivision (b), and 7891.
On October 7, 2009, Sherri M. filed a petition to declare Robert S. and Thomas D. free from parental control stating that she wanted to adopt the children. She asserted that both children suffered “extreme neglect” during their early years and were both special needs children requiring a high level of parenting ability. Sherri M. claimed that she was able to provide for their needs and they had made tremendous progress in her care. Sherri M. stated that the minors had suffered constant setbacks to their progress after visitation with their parents. She alleged that the children wanted to continue in her care and that it would be in their best interest to remain in her care.
On November 13, 2009, the court appointed counsel for the parents and continued the matter. On January 11, 2010, the court ordered the court investigator to prepare a Probate Code section 1516.5 investigation report. On February 1, 2010, the matter was set for a contested hearing.
Minors’ counsel prepared a report for the hearing. She stated that the therapist for Robert S. and Thomas D. reported that both boys were adamant about not wanting to go back to live with their mother and father and that their insistence was so great, it would take years to try to get past it. Counsel cited Ann S. to support her argument that the minors should not be returned to their parents and that the court should terminate their parental rights. In discussing Ann S., minors’ counsel claimed that section 1516.5 had been found to be constitutional and that once a guardianship had been in place for two years, the court may terminate parental rights without a showing of abandonment or unfitness. The report did not contain additional facts, but referred to the prior report filed in May 2009. Minors’ counsel did not clarify that the challenge to the statute in Ann S. was only a facial challenge.
A court-appointed investigator prepared a report and stated that the scope of his investigation did not exceed the parameters of Family Code section 7851. The investigator determined that both boys could reasonably state their preferences for custody. The investigator observed the boys in Sherri M.’s home and found the boys to be very comfortable. The boys referred to Sherri M. affectionately.
The investigator interviewed the boys separately at their school. Robert S. made positive remarks about living with Sherri M. and discussed how she had taken care of his daily needs and how he enjoyed spending time in her home. When asked about his mother and father, Robert S. looked down and said he did not like to visit with them. He said that visiting his mother and father made him mad and he did not want to continue to visit with them. Thomas D. said that Sherri M. was like a mom to him. Thomas D. liked to visit his mother and father but did not want to stay with them because he had to stay with other individuals while in his parents’ care and he did not like where he and Robert S. would have to sleep. Thomas D. said he wanted to live with Sherri M.
It was the investigator’s conclusion that the boys were incorporated into the family unit at the home of Sherri M. and to remove them would cause extreme psychological detriment. The investigator found that the least detrimental alternative would be to grant the petition.
Although the investigator prefaced her report by stating it was prepared within the parameters of Family Code section 7851, the report did not contain all of the required factors. In particular, absent from the report was a statement that either Robert S. or Thomas D. were informed of their right to attend the hearing and their feelings about doing so. (§ 1516.5, subd. (c); Fam. Code §§ 7851, 7880 subd. (b), & 7891.)
Furthermore, although the investigator prepared her report pursuant to Family Code section 7851, the report did not contain the factors that must be included in the report under section 1516.5, subdivision (b). The report touched on some of the factors because they were relevant to both controlling statutes, but it contained no discussion on the nature and extent of the relationship between Robert S. and Thomas D. and their siblings and half-siblings, Samantha M. and K.S. (§ 1516.5, subd. (a)(3)(C).)
A contested hearing on the petition to terminate parental rights was held on March 8, 2010. Barbara Suggs, a licensed clinical social worker, was called by counsel for the minors. She said that she had seen Robert S. many times since February 9, 2009, and sometimes saw Thomas D. Robert S. and Thomas D. had both expressed their desire to live with Sherri M. They felt safe in her home and felt they would not be safe in the home of their parents. Robert S. complained that he had to sleep in a bathtub, went without food and was hit. Robert S. was very worried and anxious that he might have to live with his parents. Robert S. had been diagnosed with post-traumatic stress disorder and attention deficit hyperactivity. Robert S. had been thriving in school and was more trusting than before. Suggs thought it would be very difficult for Robert S. to transition back to living with his parents and he would probably suffer setbacks if visitations were increased. It would take a significant amount of time for Robert S. to transition to his parents’ house and feel safe.
Robert S. was over 10 years old at the time of the termination hearing but did not receive a citation to appear, did not appear, and was not questioned in chambers by the court as required by Family Code sections 7880 and 7891. In Neumann v. Melgar (2004) 121 Cal.App.4th 152, 171, the court held it was error for the court not to interview the child as required by Family Code section 7891.
Charles Calton attended church with the parents and testified on their behalf. Calton directed Nineveh Outreach, a food and clothing give-away program. Mother, father, and their daughters had volunteered in the program. Calton testified that the parents’ home was clean and in a nice location. The parents had good interactions with their daughters and Calton had never seen the parents intoxicated or under the influence. Mother and father had participated in the Celebrate Recovery program for two years and were now serving in a leadership position.
Father testified that he was the father of Thomas D. and the stepfather of Robert S. He had been married to mother for seven years and they had been together for 10 years. He had three other children who lived with their mother. When mother and father were first together, CPS was always coming to their home and then the complaint would be determined to be “unfounded.” Father told Barbara M. that the next time CPS came to his house he would get a restraining order against them (Barbara M. and Sherri M.) and they would not be able to see the children anymore. The parents did not allow Barbara M. and Sherri M. to see the children for five years. During that time the CPS visits stopped.
In 2007, the family was evicted from their apartment over a dispute regarding their utility bill. The family moved into a motel. Once the parents realized sex offenders were housed in the hotel, they moved the children to father’s brother’s house. This arrangement turned out not to be ideal and father told mother she needed to call Barbara M. to see if she would take care of the children. This was a difficult decision for father because of the history the family had with Barbara M., but he made the decision in order to protect his children.
The parents took the four children to Barbara M. and told her they would have a house in three weeks. They asked Barbara M. to write out something regarding their arrangement. Father knew the children would be safe with Barbara M. About three weeks later, the parents called Barbara M. to tell her they were going to come by and pick up the children. She told them they would have to go to court.
The parents did not give Barbara M. consent to have the boys live with Sherri M. Barbara M. told the parents that if they had clean drug tests then their children would be returned to them. Father said they started providing clean drug tests and he had remained sober and without drugs for two years. The girls were returned to the parents because they wanted to come home.
Father admitted that he “messed up” but now they had a good home. He said he had a good relationship with Robert S. and Thomas D. In addition, the girls missed their brothers and vice versa. Father testified that he used to cuss at the kids, put mustard on their tongues and spank them on the buttocks. Father said he did not tell Barbara M. that she needed to take the children because they were about to be detained in foster care.
Mother testified that she and father were on drugs before they gave up their children. Father made the decision to give the children to Barbara M. to get them out of the hotel inhabited by pedophiles. They gave their children to Barbara M. on August 13, 2007. They had a suitable home on September 11, 2007, and made their first court appearance on September 14, 2007. Neither mother nor father had used drugs since.
The parents attended every court hearing trying to get their children back. Mother testified that her sisters had been trying to take her children since the first child was born. Barbara M. told mother that if she was off drugs and had a safe environment the boys could go back to her. In addition, Barbara M. told her that if mother left father, mother could have the children returned to her.
According to mother, the girls did not attend some of the visits with the boys because they were in school and also because the visitor supervisor thought it was too much to have all four children visiting at the same time.
A member of the parents’ church testified that she had been to the parents’ home on a number of occasions. They had exhibited good parenting to the girls and their home was safe and secure.
Barbara M. testified. She said she was employed by the Merced County Human Services Agency in the child welfare division. She was the supervisor of social workers. Her division detained children and determined if they were in safe homes.
Barbara M. testified that she had been contacted by CPS and then mother called and asked her to pick up the children on the recommendation of CPS. Barbara M. did so. Because of the children’s condition, Barbara M. needed help. She asked Sherri M. to take the boys. Later, she asked her in-laws to take the girls. After a while, the girls were too much for the in-laws and Barbara M. took them back. The girls continually asked to be returned to mother and father and were causing too much chaos in Barbara M.’s home. Barbara M.’s family was being affected so she asked for the guardianship of the girls to be dissolved. Barbara M. testified that when she let the girls return, they had asked her to make sure that the boys did not go back to the parents. After Barbara M. had the guardianship dissolved she called CPS and asked them to do family maintenance with the family. CPS did not see fit to do that.
It was Barbara M.’s opinion, based on her experience as a social worker, that the children had suffered from severe neglect in the form of going without food, shelter and clothing. She believed Robert S.’s behavior was evidence that he had been the victim of sexual abuse. In addition, Robert S. was very withdrawn, hardly talked, and had some acting out behaviors. Robert S. and Thomas D. had shown marked improvement after leaving the custody of their parents.
Barbara M. said she would be willing to facilitate contact between the boys and their sisters if the parental rights of the parents were terminated. She testified that they often invited the girls to do things with the boys.
Barbara M. was asked, “You don’t claim to be objective in this case. You want a certain outcome; don’t you? In other words, you want your sister[’]s petition granted. Will you admit that?” She replied, “Yes.”
After all the evidence was presented, Sherri M. argued that her goal was the best interests of the children. Counsel for the minors argued that the question was the children’s best interest and not the parents’ fitness. Minors’ counsel relied on the case of Ann S. to support her argument. Counsel said she had done a lot of cases and she could not think of another case where the children were so firm in their request to have one mother, in this case Sherri M., and not return to the home of their parents.
Counsel for mother argued that the facts in the case of Ann S. were diametrically opposed to what occurred here. These parents tried to get their children back and they never waived their rights to have custody of their children. Counsel for father said that Barbara M. and Sherri M. had never made any effort to allow the parents to have their children back together. The parents had done everything to get their children back, but they had not been returned to them.
The court found the boys had made great progress in the home of Sherri M. and she had provided a loving and stable home. The court acknowledged that mother and father had made positive strides in their lives and appeared to have turned their lives around to a positive track since the guardianship was established. Relying on Ann S., the court found the overriding legal consideration was the best interests of the children. It found that their best interests dictated they should remain in the only stable, secure environment they had known, the home of the guardian.
The court expressly found that the guardian had not thwarted the efforts of the parents to terminate the guardianship. It also found “no evidence [that] the need for the guardianship was temporary, nor that the guardian was trying throughout to ‘run out the clock’ and thwart their efforts to regain their custodial rights.”
The court ordered the parents’ rights to custody and control of Robert S. and Thomas D. terminated leaving the guardian free to pursue adoption.
IX. The constitutionality of section 1516.5 as applied.
Mother asserts her parental rights cannot be terminated because the court never made a finding by clear and convincing evidence that continued parental custody would be detrimental to the children. She claims that, although the California Supreme Court has determined that section 1516.5 survived a facial challenge to its constitutionality, it is unconstitutional as applied here. She argues it is unconstitutional as applied because the court failed to make the statutorily required referral for an investigation by social services. She claims that the failure to make this referral deprived her and the agency of a dependency court proceeding, thereby depriving mother and children of all the rights afforded to a family in a dependency proceeding. Mother asserts that if this case had proceeded in the dependency court she would have been successful in having her children returned to her. She was prejudiced by not having the opportunity to have social services determine if the case should proceed under the dependency law. That prejudice was exacerbated by the court’s finding, at the time their rights were terminated, that mother and father were fit and appropriate parents.
Additionally, mother claims section 1516.5 is unconstitutional as applied because the procedures used to establish a guardianship do not provide sufficient protection for parental rights and are fundamentally unfair. Mother points to the numerous rights she would have been afforded if she had proceeded in a dependency proceeding: counsel, notice, reunification services, and review hearings. At the initial permanent-guardianship proceeding, mother was not given counsel, was not allowed to introduce evidence, was not advised of her right to call witnesses or to cross-examine witnesses against her, was not advised of the burden of proof, was not advised of the right to object, was not served with the investigator’s report, was not advised of her right to subpoena or cross-examine the investigator, was not advised of the court’s duty to refer the guardianship petition for investigation by the child welfare agency, and was not advised of her right to appeal the court’s orders. Because she did not know her rights and did not have counsel, she could not protect her rights and the proceedings were fundamentally unfair to her. At all further hearings, except the final hearing, mother asserts she did not receive any procedural due process protections and suffered the same procedural defects as what occurred at the guardianship hearing. She contends the further hearings had additional deficiencies.
Finally, mother asserts section 1516.5 is unconstitutional as applied because she was a fully committed parent who objected to guardianship from the outset and unwaveringly sought return of her children. She also contends the best interest standard of section 1516.5 is unconstitutional as applied because there was no evidence of unfitness or lack of commitment to her parental responsibilities.
Father incorporates by reference the arguments of mother, and asserts that he was a fully committed parent and, therefore, the court could not constitutionally terminate his parental rights under section 1516.5. He asserts that he promptly came forward and demonstrated a full emotional commitment to being a parent. Father argues that he and mother were diligent and immediately sought return of their children, opposing the guardianship from the outset. Like mother, father contends termination of his parental rights under the best interests standard of section 1516.5 violated his substantive due process rights.
The best interest of the child is a constitutionally permissible basis for terminating parental rights in some circumstances and, therefore, section 1516.5 survives a facial constitutional challenge. (Ann S., supra, 45 Cal.4th at p. 1129.) The holding in Ann S. was, however, a narrow one. (Id. at p. 1135.) Section 1516.5 may not survive a constitutional challenge if the parent has demonstrated a full commitment to parental responsibility. (Ann S., supra, 45 Cal.4th at p. 1130.) If a parent “‘promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.’ [Citation.]” (Ann S., supra, 45 Cal.4th at p. 1130.) In such a situation, the application of the best interest of the child standard in section 1516.5 could be unconstitutional. (Charlotte D., supra, 45 Cal.4th at pp. 1148-1149.)
In Ann S., the mother stipulated to a temporary guardianship and, later, both parents consented to a permanent guardianship. After two years, the guardians successfully petitioned to terminate parental rights under section 1516.5 and the mother appealed. (Ann S., supra, 45 Cal.4th at pp. 1120-1121.) The court discussed Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) where the Supreme Court held “that the best interest of the child cannot justify terminating the rights of a parent who has demonstrated a full commitment to parental responsibility, but whose efforts to secure custody have been thwarted.” (Ann S., supra, 45 Cal.4th at p. 1130.)
In Kelsey S. the Supreme Court “reviewed a statutory scheme permitting the termination of an unwed father’s parental rights if adoption was in the child’s best interest, even though the mother had prevented the father from receiving the child into his home and establishing the status of ‘presumed father.’ [Citation.] We concluded that ‘[i]f an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.’ [Citation.] However, we emphasized that the father would be deprived of his constitutional right ‘if (but only if)... [he] demonstrated the necessary commitment to his parental responsibilities.’ [Citations.] Otherwise, the statutory best interest of the child standard would be ‘constitutionally sufficient.’” (Ann S., supra, 45 Cal.4th at pp. 1130-1131, italics & fn. omitted.)
The Supreme Court in Ann S. found that the holding in Kelsey S. “falls well short of establishing that ‘in the generality or great majority of cases [the test for a facial challenge]’ section 1516.5 violates the due process rights of parents who have demonstrated a full commitment to their responsibilities. [Citation.] Termination of parental rights and adoption by a guardian can occur only when the parent has surrendered custody to the guardian and exercised no parental care or control for at least two years. [Citation.] A prolonged guardianship, during which all parental rights and custodial responsibilities are suspended, with the possible exception of visitation rights, is generally inconsistent with ‘a full commitment to... parental responsibilities—emotional, financial, and otherwise.’” (Ann S., supra, 45 Cal.4th at pp. 1131-1132, italics & fn. omitted, boldface added.)
In rejecting the mother’s facial challenge to section 1516.5 on the grounds that it does not require a finding of current parental unfitness at the time of the termination hearing or that termination of parental rights is the alternative least detrimental to the child, the court left numerous areas that it was not deciding and that are open for challenge. First, the court noted that section 1516.5 can be constitutionally challenged as applied to particular parents. (Ann S., supra, 45 Cal.4th at p. 1132.) The court did not determine the constitutional sufficiency of the protections provided to parents by Family Code section 3041, the parental preference statute, because the mother consented to the establishment of the guardianship. (Ann S., supra, 45 Cal.4th at p. 1134.) Neither did the court consider the constitutionality of section 1601, which makes the best interest of the child the sole criterion for terminating a guardianship, because the mother did not seek to terminate the guardianship prior to the hearing to terminate her parental rights. (Ann S., supra, 45 Cal.4th at p. 1134.)
The court drew from dependency cases where a “finding of parental unfitness is not necessarily required at the point when parental rights are terminated. In a dependency proceeding, due process is satisfied if unfitness is established at an earlier stage, and parental rights terminated later based on the child’s best interest.” (Ann S., supra, 45 Cal.4th at p. 1134.)
The next area undecided by the court was “[w]hether the guardianship statutes afford sufficient protection to parental rights in advance of a section 1516.5 hearing.” (Ann S., supra, 45 Cal.4th at p. 1135.) The court went on to state that “it is clear that the parental fitness standard, which protects parents’ interests in child custody, is not necessarily required at a section 1516.5 hearing. By that stage, the parent-child family unit has ceased to exist and the parent’s entitlement to custody is not at issue. It would be anomalous to require proof in every case, by clear and convincing evidence, that a mother or father who has had no custodial responsibilities for two or more years is currently an unfit parent.” (Ibid.)
The court emphasized that the holding was a narrow one, “limited to mother’s contention that due process demands a finding of parental unfitness at a section 1516.5 hearing. Parents are entitled to fundamentally fair procedures in proceedings to terminate their rights, whether or not they have custody of their children and whether it is the state or a private party that moves to sever the parental bond. ‘The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child.... Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.’ [Citations.] However, the procedural standards governing proceedings to terminate parental rights are not invariable. The nature and stage of the proceeding, and the passage of time without parental custody, may make a difference.” (Ann S., supra, 45 Cal.4th at p. 1135.)
In Charlotte D., the child went to live with her father’s parents because the mother and father had substance-abuse problems. The father was incarcerated off and on. The child was inadequately cared for, first by the mother and then by the father. The mother and father consented to the grandparents becoming the child’s guardians and also waived their statutory rights to parental preference in future custody litigation. The father lived with his parents and engaged in poor behavior. He did not follow any of the rules established by his parents for his behavior in their home. He drank, used drugs, used foul language, and was abusive. He was arrested for numerous crimes. He engaged in inappropriate behavior around Charlotte, including placing the family cat in a bag and swinging it around until it screamed. The father moved out of his parents’ house in 2001, but he continued to engage in inappropriate behavior around Charlotte and to his parents. This behavior included taking Charlotte to a store while he shoplifted, being in a rage at his mom, Brigitte, and striking his dad, Cornelis, with a car. (Charlotte D., supra, 45 Cal.4th at pp. 1143-1144.)
The father received counseling. He displayed no gratitude toward his parents for caring for his daughter and was preoccupied by his disagreements with them over Charlotte. The father was granted supervised visitation in 2003 and sought custody in a domestic violence proceeding initiated by his parents. The court granted Brigitte and Cornelis retention of sole custody. The father’s visitation with Charlotte did not go well and he repeatedly violated the required behavioral guidelines. (Charlotte D., supra, 45 Cal.4th at pp. 1144-1145.)
In 2004, the father was convicted of numerous crimes. He was placed in substance-abuse treatment in August 2004 and, in January 2005, Brigitte and Cornelis filed a petition to terminate the birth parents’ rights under section 1516.5. The mother’s rights were terminated because she failed to appear. The father contested the termination of his rights. A report prepared for the hearing recommended that the father’s rights be terminated and that termination would be in Charlotte’s best interest. The court granted the petition finding that terminating father’s parental rights and allowing Charlotte to be adopted by her guardians was in her best interest. (Charlotte D., supra, 45 Cal.4th at pp. 1145-1146.)
The Court of Appeal held that section 1516.5 was “unconstitutional as applied to unwed fathers who have demonstrated a full commitment to parental responsibility[] under Adoption of Kelsey S. (1992) 1 Cal.4th 816” reasoning that due process requires a finding of parental unfitness before such a father may be deprived of his parental rights. (Charlotte D., supra, 45 Cal.4th at p. 1142.)
The Supreme Court reversed the Court of Appeal because the father, unlike the father in Kelsey S., was not prevented from acquiring presumed father status and, after the father had presumed father rights, he expressly waived them by agreeing to a guardianship. (Charlotte D., supra, 45 Cal.4th at pp. 1142-1143.) The Supreme Court acknowledged that “[t]here may be a case in which a parent who has made the kind of commitment to parental responsibility contemplated in Kelsey S. finds it necessary to place a child in probate guardianship for an extended period, and thereafter faces the termination of his or her parental rights under section 1516.5. This, however, is not that case.” (Id. at p. 1143.) The Supreme Court found that the father’s relationship with Charlotte was fully explored at the termination hearing and “the evidence overwhelmingly established that he was anything but a fully responsible parent.” (Ibid.)
The Supreme Court reviewed the Kelsey S. decision. It found that Kelsey S. did not apply to terminations under section 1516.5 because there was not a different standard for the termination of the rights of mothers as compared to fathers. But, the court found there still could be a due process claim under section 1516.5 based on a showing analogous to the showing required in Kelsey S. (a parent who promptly comes forward, demonstrating a full commitment to parental responsibilities, and showing a willingness to assume full custody of the child), and in such a situation due process would then require a showing of unfitness before a custodial parent’s rights are terminated. (Charlotte D., supra, 45 Cal.4th at p. 1148.)
“It seems unlikely that a court would find it in a child’s best interest under section 1516.5 to terminate the rights of a fully committed, responsible, and capable parent who finds an extended probate guardianship unavoidable under exigent circumstances. Nevertheless, factors similar to those set out in Kelsey S. for evaluating commitment to parental responsibility might support a parent’s claim that the best interest of the child standard is unconstitutional as applied to him or her.” (Charlotte D., supra, 45 Cal.4th at pp. 1148-1149.)
The Supreme Court found that the father’s parental performance did not entitle him to special consideration under the due process clause because the undisputed facts showed that he “fell far short of the level of parental commitment contemplated in Kelsey S. Father manifestly failed to fulfill his parental responsibilities and did not promptly defend his custodial rights.” (Charlotte D., supra, 45 Cal.4th at p. 1149.)
Unlike Ann S. or Charlotte D., where the parents agreed to the guardianship and either did not seek custody or were unable to gain custody because of their misbehavior before the matter proceeded to termination, the parents here objected from the outset. These parents admitted they were not model parents; they gave up physical control of their children only for a very short period of time. The circumstances required from the outset the protections afforded by the statutes that, as listed previously, were ignored in numerous respects.
These parents dropped their children off with their aunt while they sought suitable housing. They had no intention for their children to become subjects of a guardianship and they sought “to reclaim” their children before the temporary guardianship was even established. They did not “give” their children to the guardians, or “surrender” their children to a guardianship. They thought they were leaving their children in a safe place for a very short period of time while they worked on finding an appropriate place to live. They admitted to transgressions in their lives and did not deny that the children lacked their medication, had head lice, and were in need of clothing when they dropped them off at Barbara M.’s home. But, at the time of the temporary-guardianship hearing, they had a place to live and told the court they had not used drugs for three weeks.
They continued on their path to rehabilitation and were successful at it, without any assistance whatsoever from the state in the form of services normally provided had the matter proceeded in dependency court.
The permanent-guardianship hearing was the beginning of the end for these parents. The proceedings culminated in the irretrievable destruction of their family. The progress the parents made to improve their parenting abilities was ignored and the court never made a finding of detriment or unfitness.
At the temporary-guardianship hearing the court found that it would be detrimental to return the children to the parents. It is clear that at the time of the granting of the temporary guardianship there was not sufficient information gathered to make such a finding, not to mention the parents did not receive notice of the temporary guardianship and showed up only because Barbara M. told them to do so in order to reclaim their children.
As stated in Quilloin v. Walcott (1978) 434 U.S. 246 and quoted in Ann S., “‘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.”’” (Ann S., supra, 45 Cal.4th at pp. 1128-1129.) The court had a situation very similar to that in this case, yet it proceeded in granting a permanent guardianship based only on the children’s best interest. In so doing, the court broke up a family unit already in existence without a supportable finding of unfitness denying the parents due process to their prejudice.
During the remainder of the guardianship period, the court praised the parents and told them to keep up the good work in order to have their children returned to them. The court reduced the parents’ visitation making it difficult to re-establish a relationship with the boys. The court returned the girls to the parents, with no questions asked, and without expressing any concern regarding the ability of the parents to take care of them. From the evidence in the record, it appears the girls then thrived in their parents’ care.
These parents were willing to make a full commitment to parental responsibilities from the outset. Custody was removed from them against their wishes and without any showing of detriment or unfitness. The prolonged guardianship was not their desire and, if they were fit parents, was not evidence that they failed to make a full commitment to their responsibilities. On the facts of this case, the application of the best interest of the child standard was unconstitutional.
X. Relief requested.
Here, we do not know if the extended guardianship was unavoidable because it was never determined by clear and convincing evidence that the parents were not capable parents. We do not imply by our discussion that we have found that mother and father were capable parents throughout the lives of their children or that a permanent guardianship was not warranted. We find that the proceedings leading up to and including the termination of parental rights were fraught with error, fundamentally unfair, and resulted in a denial of due process. The termination of parental rights cannot stand.
While father asks that we reverse the order terminating his rights, without a plan for remand, mother submits that the correct remedy is reversal and remand for a new hearing on parental unfitness. She acknowledges there is no case law on this subject in the context of termination of parental rights under section 1516.5, but asks that we remand in a matter similar to that employed in In re G.S.R. (2008) 159 Cal.App.4th 1202, 1215.
In In re G.S.R. presumed father’s parental rights were terminated without a finding by clear and convincing evidence that he was unfit. The appellate court concluded that the court improperly terminated his rights based on his poverty. In reversing the termination order they stated, “We recognize and regret the procedural and emotional difficulty of undoing this fundamental error at this stage of the process, especially since both boys are doing well in [guardian’s] care and she wishes to adopt them. Still, we cannot allow the process to continue on the path toward termination of parental rights without further review in the trial court. We cannot undo the process but we can pause and restart the proceedings. Accordingly, we will reverse and remand with instructions that the trial court revisit the issue of whether, based on facts and circumstances as they exist at this time, there exist legally sufficient grounds to find it would be detrimental to return the boys to [father], recognizing poverty is not such a ground. If not, and the ICWA … is deemed inapplicable, the juvenile court shall restart the clock on reunification services and related efforts, including housing assistance, to afford [father] a legitimate opportunity to build a relationship with and become a full-time parent to his sons. Only in the event those renewed efforts fail may the juvenile court proceed with termination of parental rights. If the trial court determines it would not be detrimental to return the boys to [father’s] care, it shall take the necessary steps to assist the boys’ return to [father’s] custody.” (In re G.S.R., supra, 159 Cal.App.4th at pp. 1215-1216, italics omitted.)
We agree with mother that the above type of remand is appropriate here and reverse the order of the court under section 1516.5 declaring Robert S. and Thomas D. free from the custody and control of mother and father.
DISPOSTION
The order of the court declaring Robert S. and Thomas D. free from the custody and control of mother and father is reversed. The matter is remanded to the court to comply with section 1513, subdivision (c) and have the county agency designated to investigate potential dependencies investigate, file a report, and take such action as is required by Welfare and Institutions Code sections 328 and 329. If the agency determines it should file a dependency petition based on present circumstances then the matter should proceed in that fashion. If not, after reviewing the report, the court shall determine if there exist legally sufficient grounds to find it would be detrimental to return the boys to mother and father. If the court finds detriment exists it shall comply with the notice provisions of ICWA. If the court finds, after proper notice, ICWA does not apply, the court shall provide services to mother and father to reunify with Robert S. and Thomas D. Only in the event those renewed efforts fail, may the court proceed to a hearing to terminate parental rights.
WE CONCUR: HILL, P.J., WISEMAN, J.
An order granting a permanent guardianship is an appealable order. (§ 1301, subd. (a).) Although parents did not appeal from this order, we find they have not forfeited the right to raise issues dating back to the beginning of the proceedings. Parents did not receive proper notice, were not informed of their right to representation, and it appears they could not afford to retain counsel. Their failure to appeal is excusable.