Grandparent Guardianships and Adoptions

            When parents no longer adequately
provide for the wellbeing 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:
(1) where the minor lives; (2) ensuring that the minor is properly fed, clothed,
and sheltered; (3) supervising the minor’s conduct; (4) enrolling the minor in
school; and (5) ensuring the minor has proper medical care.  Typically, the grandchild lives with his/her
grandparents and is essentially raised by them.
The guardianship terminates once the minor reaches eighteen years, 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 Court of
Appeal (First Appellate District) held that the probate court was not required
to refer guardianship proceedings to the county’s child welfare agency, who
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.