Recent developments in California law make it easier for courts to terminate the rights of parents whose children are in a legal guardianship. Whether that's good or bad will probably depend on your perspective. Grandparents trying to protect a grandchild from a cruel or abusive parent will probably hail the recent development as a boon to grandparents' rights. But parents in a period of difficulty who are considering whether to leave a child in the custody of a legal guardian may see this as a terrifying slippery slope to losing parental rights. I have seen people on both sides of that divide and can confidently say that there is rarely an easy solution. But people should know the law that affects their rights, so I want to explain the situation.

First, before I say any more, please remember that nothing I write here is intended as legal advice and you should not take it as legal advice. Your situation is unique and if you need legal assistance or guidance then you should contact an attorney in your area. If you are in the central San Joaquin Valley and would like to meet with me, my office is in Fresno. To set an appointment for a consultation, please contact my firm through its website.

A Little Background 

To understand the importance of the recent development, you need a little background knowledge. Before a child can be adopted, the parents must consent to the adoption or their parental rights must be terminated. The California Family Code lists several grounds for termination of parental rights, such as abandonment, neglect or cruel treatment, that the parent has been convicted of a felony that demonstrates his or her unfitness as a parent, or that the parent is developmentally disabled or or mentally ill. (There are other grounds for termination, but those are probably the most commonly used, that I have seen.) When someone wants to adopt a child without the consent of one or more parents, he or she can file a petition with the court alleging one or more of those grounds. Common situations are where the child's caretaker wishes to adopt and the parents do not consent, or where a stepparent wishes to adopt, and the non-custodial parent will not consent.

In 2003, the Legislature added a section to the California Probate Code (section 1516.5) to establish a new ground for terminating the rights of parents whose children are in the custody of a legal guardian. Under the new section, if one or both parents do not have legal custody, the child has been in the physical custody of the legal guardian for at least two years, and it would benefit the child to be adopted by the the legal guardian, the guardian can ask the court to terminate the rights of the parents.

If that seems to you like a surprisingly easy way to lose parental rights, you are not alone. Two different parents recently challenged the constitutionality of section 1516.5. They argued, in different ways, that since parents have a "fundamental liberty interest" in the care, control, custody, and companionship of their minor children, a court cannot terminate their parental rights without finding the parents to be "unfit." Since section 1516.5 does not require a finding of "unfitness," they argued, it violates due process under the United States Constitution. In other words, they argued that section 1516.5 made it too easy for the court to terminate their parental rights. In a pair of opinions issued on March 19, 2009—Guardianship of Ann S. and In re Charlotte D.—the California Supreme Court disagreed.

Before I explain any further, it is important to understand that the guardianship must be a legal one before Probate Code section 1516.5 comes into play. Termination of parental rights under section 1516.5 is not available for children who have been left with a relative or a caretaker in an informal guardianship. When I say "legal guardianship," I am talking about what is also called "probate guardianship," because the Probate Code provides the statutory basis for establishing the guardianship.

Guardianship of Ann S. 

In Ann S., a mother with major substance abuse problems agreed to let another couple have legal guardianship of her 18-month-old daughter, Ann, with no visitation rights. Not long after, she pled guilty to a felony theft charge and received a 32-month prison sentence. While she was incarcerated, the guardians filed a petition to adopt Ann, but the mother refused to consent. So they tried to terminate her parental rights on the ground of abandonment or conviction of a felony demonstrating unfitness, but the court said no. All of that was before January 1, 2004, when section 1516.5 became effective. So in February 2004, after discovering this new ground for termination of parental rights, the guardians tried again, this time under section 1516.5. The court granted their petition to terminate parental rights and the mother appealed. The California Court of Appeal affirmed the termination and the mother petitioned the California Supreme Court for review of the ruling.

Here is one paragraph from the Supreme Court's opinion in Ann S. that explains the outcome pretty clearly:

Mother argues that section 1516.5 is unconstitutional because it permits the termination of parental rights based only on the child's best interest. She contends due process requries a showing by clear and convincing evidence that the parent is presently unfit, or that terminating parental rights is the least detrimental alternative for the child. Her claims are based on a parent's fundamnetal interest in "the companionship, care, custody, and management of his or her children." [Citations.] It is noteworthy, however, that while mothre invokes the due process protections courts have developed to protect this interest, she is not seeking to obtain the interest here. Neither she nor any other parent in a section 1516.5 proceeding has or stands to gain the companionship, care, custody, or management of the child. If the mother defeats the effort to terminate her parental rights, the guardianship continues and those rights remain in a state of suspension.

In other words, when the mother agreed to the guardianship of her child, she essentially gave up her interest in parenting that child, leaving nothing to be protected by requiring a finding of unfitness, and making the best interest of the child the only thing that matters. As the Court pointed out a little later, in footnote 16 of its opinion, "Section 1516.5 has made the eventual termination of parental rights a potential consequence of establishing a probate guardianship[.]" More on that below.

The main holding of Ann S. is that California Probate Code section 1516.5 is "facially constitutional," meaning that it has no inherent constitutional defects, but that individual parents may challenge it on the grounds that applying it to them, in their particular circumstances, would be unconstitutional. (Lawyers and legal scholars call that an "as-applied challenge" because people who raise such a challenge are only saying the law is unconstitutional as applied to them.)

The mother in Ann S. also argued that section 1516.5 should not be applied to her because she agreed to the guardianship before that section became effective. But section 3 of the California Probate Code says that new provisions of the Probate Code affect "all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date," unless making a new law applicable to something that happened before it became effective would "substantially interfere with . . . the rights of the parties or other interested persons in connection with an event that occurred or circumstance that existed before the opperative date"—in which case the court can choose whether to apply the old or new law. So the Supreme Court looked at the mother's situation to decide whether the exception should apply. No such luck. First, the mother only said she "probably" would not have consented to the guardianship if section 1516.5 had been effective. Second, the mother's severe substance abuse problems probably would have resulted in a juvenile dependency proceeding even if she had not consented to the guardianship. One way or another, the Supreme Court said, this mother was going to lose her daughter, so there was no point in not applying the new law.

In re Charlotte D. 

In Charlotte D., a father argued that section 1516.5 should not apply to him because terminating his parental rights without finding that he was "unfit" would be unconstitutional under Adoption of Kelsey S., a California Supreme Court opinion from 1992.

In Kelsey S., the Court held that if a mother who wanted to give her child up for adoption prevented the father from coming forward and establishing his fatherhood in order to keep him from becoming a "presumed father" under California law—which means his consent would be required for an adoption—then if the father "sufficiently and timely demonstrated a full commitment to his parental responsibilities," the court could not allow the adoption without his consent unless it found that he was unfit. In other words, if a mother could keep the father of her child from getting involved, then she could give the child up for adoption but the father would have no way to protect his parental rights. Essentially, the mother could unilaterally decide that the father would have no right to be a parent, which gives mothers more rights than unwed fathers. That, said the Court, violated unwed fathers' right to equal protection and due process.

But in Charlotte D., the Supreme Court said that Kelsey S. did not apply, first because the mother had not prevented the father from asserting his rights, and second because section 1516.5 "does not prescribe a different standard for terminating the rights of natural fathers than it does for mothers or presumed fathers." The Court did suggest, however, that 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 based on a showing analogous to the one we outlined in Kelsey S." In other words, "[i]t 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." But the father in Charlotte D. did not meet that standard, so the Court affirmed the termination of his parental rights under section 1516.5.

What does all of this mean?

Put simply, legal guardians can adopt the children in their custody relatively easily, without the consent of the children's parents, by bringing a petition to terminate parental rights under Probate Code section 1516.5. This is especially important for many grandparents who have established legal guardianship of their grandchildren. Now they have a clear path to adopting those children and putting away their fears that the parents will one day return and make legal trouble for them. Essentially, after two years of legal guardianship, the guardians only need to show that adoption is in the children's best interest and the court can terminate parental rights.

From the other side of the coin, however, these cases highlight the continued development of our law and society away from the importance of parental rights and toward the goal of ensuring that children have caretakers who serve their "best interest." Our laws are more interested in making sure that children have a stable home life than in preserving the biological or emotional ties of parents to their children. We have spent the last few decades upping the ante for parents. We recognize those biological and emotional ties, but parents who are not zealous in maintaining those ties and taking seriously the job of parenting stand to lose their parental rights very easily.

As a practical matter, these cases mean that when a parent consents to the legal guardianship of his or her child, the clock starts ticking. Two years later, if that guardianship is still in effect and the parent has done nothing to demonstrate that he or she is "a fully committed, responsible, and capable parent who finds an extended probate guardianship unavoidable under exigent circumstances," then the rights of that parent will be hanging by a thread. A petition under Probate Code section 1516.5 is all it will take to snip the thread. Since termination of parental rights is a potential consequence of consenting to legal guardianship, parents should look at legal guardianship only as a temporary status. Otherwise, it is the beginning of the end. Parents who find themselves in those exigent circumstances that necessitate a legal guardianship should recognize those circumstances as a signal to make major and immediate changes in their lifestyle if they want to keep their kids.

We can argue the wisdom of this tendency—and I'll be the first to express unease with where we seem to be headed—but this is the law for now. The moral of the story is simple: if you want to have children and you want to keep your children, then you need to be a good parent. Criminal, abusive, or addictive behaviors are not good for you, they are not good for your children, and, depending on your circumstances, they may just give the government a means to oust you from your parental role. Parents do have rights, but when then take those rights for granted and trample all over them with bad behavior, the courts will not be impressed and those rights are likely to be terminated.

Finally, as I said above, nothing I write here is intended as legal advice and it should not be taken as legal advice. I do not know your unique situation. If you would like to set an appointment for a consultation, please contact my firm through its website. 

While doing a some online research regarding domestic violence and battered woman syndrome, I found an excellent free resource that I wanted to share. It's called The Women's Rights Handbook and it comes from the website of the California Attorney General's Office. In particular, Chapter 7 has information about violent crimes committed against women and children, including advice for how to defend yourself in an attack, definitions of "sexual assault" and "domestic violence," and information about how to deal with domestic violence when it happens to you.

Other chapters of The Women's Rights Handbook discuss your legal rights relating to many areas of life, including employment, economic independence, education, housing, health care, domestic relations, and child care. The last chapter includes a directory for finding services and more information. You may also want to look at the domestic violence brochure (PDF) put out by the California Attorney General's Office.

Please remember, however, that your computer is probably keeping track of what you view online. If you are using a computer at home, someone else might be able to see which websites you have viewed. If you do not know how to "cover your tracks" by using a privacy mode or deleting history and cookies, then you should probably look at these websites from a computer in the home of someone you trust, or in a public library.

In the first two sentences of a recent opinion from the California Court of Appeal, Justice Gilbert offers a nugget of wisdom that everybody with a legal problem needs to remember:

Parties agree to act reasonably in their contractual relationship. This case demonstrates that when a party acts unreasonably, no one prospers, except the attorneys.

Don't give too much weight to that first sentence—you shouldn't be acting unreasonably even when you're not in a contractual relationship. I've put the important lesson in boldface: When somebody in a legal matter acts unreasonably, no one prospers except the attorneys.

In Peak-Las Positas Partners v. Bollag, a series of events, many of which were government procedures beyond the parties' control, delayed the finalization of a real property deal. The parties agreed to extend the escrow on the deal once, but the second time an extension became necessary, one of the parties flat refused—even though the other party had already spent about $5 million trying to get their project going and to comply with government requirements! This, said the court, was unreasonable (despite several rationalizations offered by the defendant). In affirming the order that defendant pay more than half a million dollars in attorneys' fees to the plaintiff, the court noted that the defendant had "interjected collateral issues to complicate the litigation" and that his "vigorous defense necessitated a great deal of work by experienced attorneys."

Work by attorneys, experienced or not, is usually expensive—especially when the case requires "a great deal" of it. The defendant in that case could have saved everybody a lot of money by being reasonable and agreeing to extend the escrow on the deal. But he didn't. And then he made a "vigorous defense" of his position and "interjected collateral issues to complicate the litigation."

This is why, when you seek an attorney, you need to think about more than just what you want. It's easy to get lost in your goals. You think, "That other person is so bad! I need to make him or her pay!" We see this a lot in family law, where the disputes can be especially bitter. People end up fighting over every little detail. Nobody wants to give an inch. Things get dragged out. All the dirty laundry is put on display. But this is expensive, and adopting a more reasonable attitude can save a truckload of money. (And keep you from annoying the court, too. Do you really think the judge wants to preside over a fight between people who are acting unreasonably? Judges are supposed to be impartial, but you don't want to take your chances by getting on the judge's bad side.)

Be aware, however, that some issues in family law really are so important that a hardline, no-settle position is justified. In those cases, fighting hard might be reasonable. But most cases can be resolved more easily than that. Before you decide to dig in your heels, you need to evaluate your position rationally when you talk to your attorney, who can help you see past the emotional issues that might be clouding your view.

And sometimes the other party can drag you down. You need to think about that before you get involved. If you are pretty sure that the other party is going to fight you every step of the way, then be ready to pay more attorney fees, or reconsider your goals. You should also talk to your attorney about the personal quirks of the other party. (This is usually possible in family law because the parties ordinarily know each other very well. It's less possible in civil litigation, where the parties would often be strangers if not for the problem that brought them into court.) Is there a way to approach the issue that will result in a more reasonable—and less costly—response?

Fighting things out in a lawsuit will always be expensive. Talk to your attorney about acting strategically, instead of just coming down from on high with a flaming sword of (what you think will be) justice. Remember that courts are set up to solve problems. When you use the court to get revenge, instead of to solve a problem, you will probably suffer as much as your opponent. While the battle rages, the attorneys will be working. Fees and costs will keep adding up. By the time you finally "win," you may not feel much like a winner. But your attorney wasn't working for free, and he or she will expect you to pay your bill.

So remember the short sentence from the case I quoted above: "When a party acts on reasonably, no one prospers, except the attorneys."

Finally, please remember that nothing I write here is intended as legal advice for you, so you should not take that way. Your situation is unique and you should speak to a local attorney if you have a legal issue. If you would like to speak to me, please visit the website for my firm. There you can contact my office and set up a consultation.

Several California lawmakers and advocacy groups want to reform our family courts. They cite problems like "inconsistent behavior," the use of non-scientific theories, such as "parental alienation syndrome," and the failure to follow "the legal principals of accepted evidence." Dealing with child abuse has also been problematic. In some counties, children have been placed in homes with abusers and people with criminal records, apparently because child custody evaluators are not required to have a high level of training.

In other words, the reformers want family courts to be consistent and predictable, they want those courts to rely only on evidence that's admissible under the same rules that apply in other courts, and they want nonjudicial court staff to have the level of training we would expect from people who are, in essence, making important decisions about the lives of children and families. They also want whistleblower protection for family court employees. These reforms would probably be helpful. But a level of fairness and predictability that satisfies everyone may not be possible.

Family courts exist in a strange and difficult realm of law. People involved in families have their own expectations for how their family relationships are supposed to work, and what kinds of obligations will arise from them, while the laws that apply to those relationships are typically based on the public policy goals expressed by the Legislature. Some people, like spouses, enter family relationships voluntarily, but others, like children, have no choice. There are ways for people to opt out of the legislated rules for some things (like the community property system), but no way to opt out of others (like the duty to pay child support). And even when opting out is possible, as with the community property system, most people don't know how, and the law makes it difficult to succeed even if they do know how.

In short, the field of family law is like a big battle between our most basic human impulses—love, sex, companionship—and one of the most sophisticated methods of organizing and controlling a population that has ever been devised—legislation. Right in the middle of that battlefield, making things extraordinarily difficult, is our ability to create new people who never got to decide on their circumstances. Almost everyone agrees that parents are not the omnipotent rulers of their children's lives, but finding the boundary between the rights of parents and the rights of children can be exceedingly difficult.

No one should be surprised that family courts, who have to sort out all those people and their problems and try to be fair, are beset with problems like inconsistency and unpredictability. In recent decades, we have tried to improve the system by making it less adversarial and more therapeutic. But a lot of people are still not happy with family courts, and probably never will be. Our system can be especially frustrating for attorneys because we want to see predictability and patterns, things that will help us advise our clients: If you do this, then that will happen. Sometimes, we just can't do that. Or what we think is good advice turns out to be not-so-good advice. And then nobody is happy.

But before you start to worry about the court, remember that you still have control of your own life. You can make good decisions for yourself and for your children, you can work on your communication skills and try to make agreements with your ex-spouse, or others involved in your situation. Some problems will always need to be solved by judges, but many of the most complicated and emotionally difficult problems can be addressed by the people who are dealing with them directly.

If you are facing the prospect of going to family court, you should remember that judges cannot—and probably don't want to—solve all your problems. Talk to your attorney and see if you can get to the bottom of things. Attorneys are very good at examining your problems from arm's length, without the emotional confusion you might feel, and helping you figure out that one or two things is really causing the whole blow-up that you're experiencing. Address those things, and the rest of the problems will often solve themselves, or at least seem much more manageable.

Finally, as usual, remember that nothing I write here is intended as legal advice for you, and it should not be taken as legal advice for you. Your situation is unique and you should speak to a local attorney if you have a family law issue. If you would like to speak to me, please visit the website for my firm. There you can contact my office and set up a consultation.

It's Kids Day here in Fresno, so make sure you buy a copy of the special edition of The Fresno Bee from one of the many volunteers out there. Your donation goes to support Children's Hospital of Central California.