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Name: In re Noreen G.
Case #: A122651
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 02/09/2010
Summary

Probate Code section 1516.5 is not vague and does not deny due process. The minors were freed from parental custody by way of a Probate code section 1516.5 petition. The parents challenged section 1516.5, contending that it is impermissibly vague and violates due process. The appellate court rejected the challenges, finding that under the authority of In re Ann S. (2009) 45 Cal.4th 1110 and In re Charlotte D. (2009) 45 Cal.4th 1140, the due process challenge was unfounded. Further, the challenged term "physical custody" in section 1516.5 gives adequate notice of its meaning and is not vague.
No prejudicial deprivation of the minors’ right to counsel occurred where the trial court failed to appoint counsel until the commencement of the trial. Counsel was appointed for the minors before trial commenced. The attorney had represented the minors throughout the guardianship so she was familiar with the history of the case. The minors were vigorously represented. Therefore, nothing in the record indicated that the failure to appoint the attorney for the minors at an earlier stage of the proceedings adversely impacted their rights at trial.
Reversal was not required where the investigator’s report was inadequate. The parents also challenged the investigator’s evaluation and report because the investigator failed to interview either of them and also because the investigator deferred a recommendation on the petition until the hearing. The appellate court found the issue waived for failure to challenge the inadequacies in the report below. However, it did agree that the report was inadequate. It found the error harmless beyond a reasonable doubt, however, because the missing information was presented in other forms at the trial.
Substantial evidence supported the finding of benefit to the minors by the granting of the petition. The parents also challenged the evidence to support the decision to terminate parental rights. The appellate court rejected the challenge, finding that the reports uniformly established that the minors were at risk in the mother’s home. The finding that termination and adoption was in the minors’ best interest was not flawed by the order allowing continued visitation.
Remand was required for proper ICWA inquiry where the trial court did not properly inquire about the minors’ Indian heritage. The trial court here did not inquire into the Indian heritage of the minors before terminating parental rights. Since section 1516.5 does not apply to Indian children, remand was required for proper inquiry.
The trial court did not have the authority to order visitation by the birth parents after termination of their parental rights. The guardians also appealed the authority of the trial court to order visitation. The appellate court held that, as in other proceedings, if parental rights are terminated in an action pursuant to Probate Code section 1516.5, the court does not have authority to order continuing visitation by the birth parents.