Don H. v. Patricia F.

This case requires us to explore a troublesome area in California’s guardianship law. Under the applicable statute, after a guardianship is established, a court may make an order ending the guardianship (which usually means sending the child back to live with a natural parent) if either one of two conditions exist:

The troublesome part of the law lies in the disjunctive “or.” By using that little word, the Legislature signaled that a guardianship might be terminated *1231 even if it wasn’t in the best interest of the child to do so, as long as it was “no longer necessary” for the child to have a guardian.

In the case before us, a guardianship was initially established with the maternal grandmother because the parents were having marital difficulties, brought on in large part by the father’s drinking. Having attended counseling and Alcoholics Anonymous and been sober for over three years, the father sought return of his children by terminating the guardianship.

The father’s having overcome his drinking problem forced the trial court to wrestle with the implications of the use of the disjunctive in the statute, because it was still clear that it was not in the best…