Skip to content
Name: Guardianship of Ann S.
Case #: S143723
Court: CA Supreme Court
District CalSup
Opinion Date: 03/19/2009

Due process does not demand a finding of parental unfitness at a Probate Code section 1516.5 hearing. The mother’s rights to the minor were terminated under Probate Code section 1516.5. On appeal she argued that section 1516.5 is unconstitutional on its face because it allows the fundamental rights of parenthood to be terminated without a showing of unfitness, or that termination is the alternative least detrimental to the child. The California Supreme Court rejected the challenge, finding the statute facially constitutional. A showing of unfitness is not always necessary when a court terminates parental rights. A termination under section 1516.5 occurs only when the parent has failed to exercise any custodial responsibility for a two-year period with the possible exception of visitation. It would not make sense to require a finding of unfitness in this context. Where guardianship continues for an extended period, the child acquires an interest in a stable placement, and the guardian acquires an interest in the custody of the child. The statute requires the court to balance the interests in determining the best interests of the child. The “least detrimental alternative” standard argued by the mother is included in the determination of the child’s best interest. Further, retroactive application of section 1516.5 was consistent with due process in this case.