When parents no longer adequately provide for the well being of their children, it is grandparents who are often the ones to take charge as guardians of their underage grandchildren. Without their caring intervention, their grandchildren might otherwise be placed with a foster family.
Let us examine how such guardianships can lead to adoptions.
Under California law, grandparents have certain rights in their relationship with their grandchildren. This includes the right to seek partial or full custody when the health, safety and welfare of the child are at stake.
A probate guardian has the following custodial responsibilities for the minor: where the minor lives; ensuring that the minor is properly fed, clothed and sheltered; supervising the minor’s conduct; enrolling the minor in school; and ensuring the minor has proper medical care.
Typically, the grandchild lives with his or her grandparents and is essentially raised by them. The guardianship terminates once the minor reaches 18 years of age, is emancipated, or sooner if the court finds that the guardianship is no longer needed and returns the child to his/her parents.
During the guardianship, it is up to the biological parents, if they intend to regain their parental custody, both to visit the minor and to rehabilitate themselves so that they are able to provide a safe and stable living environment for the child. Unfortunately, that does not always happen.
After two years of guardianship, the guardian may petition the court for adoption of the minor. Adoption of the minor completely severs the parents’ rights to regain custody or to involve themselves in the life of their child.
Recently, in the Adoption of Myah M case, the First Appellate District Court of Appeal held that the probate court was not required to refer guardianship proceedings to the county’s child welfare agency, which would then have investigated the parents’ fitness, because the parents – who were drug users and had anger management issues – had consented to the guardianship as the best option.
The parents had argued that failure to conduct such an investigation prior to the adoption violated their due process rights.
While both the California and United States’ constitutions protect parental rights, the court found that requiring referral to the county’s child welfare agency for investigation would be bad policy.
It was not necessary because the parents had voluntarily agreed to the guardianship; this occurred in the context of family mediation.
In essence, after the second year of the guardianship the parents had forfeited their parental rights by not getting their lives in order.
The Myah M case shows how parental rights can be relinquished in the course of a guardianship.
Grandparents may choose to adopt their grandchildren in order to sever relations with the abusive parents.
In Myah M, the parental grandparents could no longer endure the verbal, and sometimes physical, abuse associated with the parental visitations. They wanted the freedom to relocate outside California.
Had the parents gotten their lives in order – ended their drug abuse and controlled their anger – and been able to provide a safe and stable home, then the outcome might have been different.
That did not happen, and the court found that the adoption by grandparents was in the best interests of the child.
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 First St., Lakeport, California. Dennis can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .