Yesterday, we discussed about guardianship and parental unfitness under Probate Code section 1513 (c). In a similar vein, we will discuss about parental rights termination based upon child's best interest pursuant to Probate Code section 1516.5.

In re Charlotte D. (2009) 45 Cal.4^th 1140, a child's grandparents filed a petition seeking to become her guardian. They were named as her probate guardians by stipulation. An adoption request was subsequently filed by the grandparents who sought to terminate the birth parent's rights in accordance with Probate Code section 1516.5. Upon deliberation, the trial court terminated the parents' rights based upon the best interests of the child. The child's father appealed arguing that Probate Code section 1516.5 was unconstitutional as applied on this particular case because he was denied due process and the termination of his rights was based solely upon the best interest of the child. The Court of Appeal reversed the trial court's decision, since there was no showing of the father's unfitness as a parent, which it reasoned was required by due process. Review was granted.

The Supreme Court reversed the Court of Appeal's decision. The Supreme Court held that a father's due process rights were not violated when his parental rights were terminated based upon the child's best interests after a hearing held pursuant to Probate Code section 1516.5. Probate Code section 1516.5 applies when a minor has spent at least two years in a probate guardian's custody. During that time, all parental rights and custodial responsibilities are suspended except possibly for visitation rights. Accordingly, a showing of unfitness is generally made and due process does not necessarily require a further showing of parental unfitness to terminate parental rights at the time of the Section 1516.5 hearing. Consequently, while it is possible that a parent could assert a due process claim, generally in such a proceeding, parental rights may be terminated based upon the child's best interest alone.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.