 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Simpson v. Brown11/10/1998
analyze the case under section 1601 of the Probate Code which directly deals with guardianship termination proceedings, but under the family law statute (former section 4600 of the Civil Code, now section 3041 of the Family Code) dealing with initial awards of custody in family law cases. Applying the "parental preference doctrine," the court held that the trial court erred. The case against the mother was based on such psychological nebulae as a lack of warmth, an inability to express her love for her children, and a second marriage to a younger man. (See B. G. , supra, 11 Cal.3d at pp. 686-687, fn. 10 [quoting comments of trial Judge].) Against any real detriment to the children, the fact the mother was the mother was dispositive in a context where there was an attempt to establish a guardianship for the first time and against the parent's will.
Like B. G., Guardianship of Stephen G., supra, 40 Cal.App.4th 1418 did not confront the operation of the statute in the case before us, section 1601 of the Probate Code. Again, the case did not involve the termination of a voluntarily established guardianship, but the involuntary creation of a guardianship. (See Stephen G., supra, 40 Cal.App.4th at p. 1421-1422.) Accordingly, the court looked to the family law initial custody award statute, section 3041 of the Family Code, in determining the applicable standard of proof. (See id. at pp. 1423-1424.) Because a guardianship was being, in essence, forced upon the child of an objecting natural parent, the appellate court noted that due process required the same clear and convincing standard of proof applicable to the termination of parental rights in juvenile dependency cases. (See id. at p. 1425; see also Santosky v. Kramer (1982) 455 U.S. 745, 747-748 and In re Angelia P. (1995) 28 Cal.3d 908, 917-919.)
As explained in Kassandra H., the paradigm characteristic of the juvenile dependency law -- the need to justify deprivation of custody by clear and convincing evidence of detriment -- is not the proper model for guardianship termination law. (See Guardianship of Kassandra, supra, 64 Cal.App.4th 1228, 1237.) It is one thing for the government to wrest a child from a parent and place him or her with foster parents against the wishes of that parent, then move to terminate parental rights absolutely. It is another for a parent -- faced with some personal difficulty which makes it difficult or impossible to rear his or her children -- to voluntarily establish a relationship which, unlike juvenile dependency law, need not move toward the ultimate and absolute termination of all parental rights. It is the latter situation which obtains here, and therefore the concerns which require a clear and convincing standard of detriment in the juvenile dependency context do not apply.
As also shown in Kassandra H., California courts have for many years looked to the overall fitness of the parent in construing the guardianship termination statute. (Guardianship of Kassandra H., supra, 64 Cal.App.4th at pp. 1239-1240; see, e.g., Guardianship of Boulad (1949) 90 Cal.App.2d 135; Guardianship of Brock (1957) 154 Cal.App.2d 431; Guardianship of Davis (1967) 253 Cal.App.2d 754; accord, Guardianship of Case (1943) 57 Cal.App.2d 844; Guardianship of M.S.W. (1982) 136 Cal.App.3d 708.) To distill more than 50 years of case law explicating section 1601 (and its predecessor statute): The burden in a guardianship termination proceeding is not -- as the trial Judge assumed here -- upon the guardians to show by clear and convincing evidence there would be detriment to the child to be returned to the natural parent. Rather it is upon the parent to show "overall fitness" on his or her part "sufficient to overcome the inherent tra
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|