Filed 7/30/15 Adoption of A.P. CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----




Adoption of A. P., a Minor.                                                                  C076310


NANCY S.,                                                                       (Super. Ct. No. CVSA1231)

                   Plaintiff and Respondent,

         v.

STEPHANIE G.,

                   Defendant and Appellant.




         Stephanie G., mother of the minor, appeals from orders terminating her parental
rights and denying her petition to dismiss the termination action. (Prob. Code, § 1516.5,
see also Fam. Code, § 7800, et seq.) Mother argues that the court could not entertain a
petition to terminate her parental rights pursuant to Probate Code section 1516.5 because
she was denied due process in the establishment of the underlying guardianship in that
the probate court did not make any referral to the relevant child welfare agency as


                                                             1
required by former Probate Code section 1513, subdivision (c) (hereinafter section
1513(c)) at the time the guardianship was granted.1 Mother further asserts that the order
terminating parental rights must be reversed because the record does not reflect
compliance with the duty of inquiry as required by the Indian Child Welfare Act
(ICWA), California statutes and the California Rules of Court. (25 U.S.C. § 1901 et
seq.; Welf. & Inst. Code, § 224.3; Cal. Rules of Court, rule 5.481.) Agreeing only with
the latter contention, we reverse for compliance with ICWA.
                                          FACTS
                                             A
                                     The Guardianship
       In March 2009 the minor’s paternal grandmother, Nancy S., filed a petition for
guardianship of the 14-month-old minor, alleging that the minor was left in her care for
ten days without any contact from mother. The petition further alleged mother used
methamphetamine and was frequently in custody. An attachment to the petition stated
the minor was not eligible for membership in an Indian tribe. The minor’s father
consented to the guardianship. The court appointed the paternal grandmother temporary
guardian for the minor in April 2009 and referred the case to the court investigator.
       The court investigator’s report reiterated the allegations of the petition that mother
used methamphetamine, was frequently in jail, was homeless and was neglectful of the
minor. The report said the minor was currently living with the paternal grandmother who
reported a “marginal amount” of Cherokee heritage but did not claim the minor was, or
might be, an Indian child. The report stated mother opposed the guardianship. The




1      The statute has since been amended. The provision, modified to change the
relevant language from mandatory to permissive, now appears in subdivision (b) of
Probate Code, section 1513.

                                              2
investigator concluded that guardianship was necessary and recommended the court grant
the petition.
       Both mother and the paternal grandmother testified at the guardianship hearing on
May 13, 2009. The court granted the guardianship petition, finding by clear and
convincing evidence that placing the minor with mother would be detrimental and that
placement with the paternal grandmother was in the minor’s best interest. The court did
not make a 1513(c) referral at that time. Letters of guardianship issued.
       On May 20, 2009, the court reviewed the matter, finding mother was in a 90-day
drug treatment program. In September 2009, the court again reviewed mother’s status,
finding she had graduated from inpatient treatment and was in an outpatient program.
The court adopted a visitation schedule and set a further review. Mother did not appear
at the December 2009 review and there was no proof before the court of any ongoing
treatment.
       In February 2010, mother sought a modification of the visitation orders alleging
she had relapsed but had been clean for three weeks. By the end of March 2010, mother
was back in treatment after another relapse. In April 2010, mother said she did not want
to end the guardianship, she only wanted increased visitation.
       In March 2010, the guardian filed a request to modify the visitation order, seeking
suspension of visits due to a violent altercation during a visit.2 The guardian opposed
mother’s request to increase visits and asserted she was no longer willing to supervise
visitation.




2       The guardian sought and was granted a restraining order against mother and her
sister based on the incident.

                                             3
       At the hearing on the two visitation requests in April 2010, the court ordered
mother to provide a written report from her treatment program, document her living
arrangements, attend a 12-step program and provide proof of two months of employment.
The court ordered supervised visits at the family resource center (center) twice a month,
to be canceled if mother was more than 15 minutes late.
       The guardianship annual report stated mother’s visits at the center were terminated
due to missed visits. At the guardianship review in August 2011, the court noted mother
was in custody.
       In January 2012, mother again sought modification of the visitation order, alleging
that, since her release she had been in a drug treatment program with inpatient and
outpatient treatment, she had been sober for six months and would graduate from the
program in March 2012. The guardian opposed the request, alleging mother had not seen
the minor for over a year and visited only sporadically before that. At the hearing on
mother’s request for modification, the court observed the guardian had filed a petition to
terminate parental rights and a petition for adoption and served mother in open court.
The minute order does not reflect that either party was asked about their Indian heritage.
                                              B
                               The Termination Proceeding
       In April 2012, the guardian filed an adoption request and a petition to terminate
mother’s parental rights pursuant to Probate Code section 1516.5. The petition alleged
the minor had been in guardianship more than two years with only sporadic contact with
either parent due to parental drug use and incarcerations. The petition further alleged
mother had not visited the minor for over a year and had intermittent supervised visitation
prior to that. The petition alleged the minor had no significant bond to mother and the
father had agreed to relinquish his parental rights.




                                              4
       The court appointed counsel for mother. In August 2012, the court allowed
mother two visits to be supervised by a therapist. In September, the court authorized one
additional visit.
       A probation report pursuant to Family Code section 7851, filed in October 2012,
listed part of mother’s criminal history, including convictions which resulted in several
jail terms and drug treatment referrals. The probation officer interviewed the guardian
who explained she had instituted guardianship proceedings in 2009 due to mother’s
significant drug issues, her care of the minor, and her living conditions. The guardian
told the probation officer she wanted to provide a stable loving home for the minor and
believed adoption was in the best interests of the minor. The probation officer also
interviewed mother who said she had been in jail in 2011, was terminated from
Proposition 36 probation and became involved in the “Treatment Accountability for Safer
Communities” (the program) which sent her to residential treatment. Mother’s support
person in the program said mother was compliant with the program and completed it.
Mother was living with her sister, working, trying to get visitation with the minor and
wanted to regain custody of the minor. The probation officer observed the minor in the
guardian’s home. The minor spoke about the guardian, his cousins and other interests but
did not mention mother, although he had visited her within the week. The report stated
that the evidence did not conclusively support termination of parental rights at present
and recommended the petition be put over for six months to obtain further proof.
       In October 2012, mother filed a motion to dismiss the petition for adoption
alleging that the probate court had not complied with the mandatory duty to refer the case
to the child welfare agency as required by the former version of section 1513(c). Mother
contended that proceeding to adoption in light of the prior statutory violation constituted
a denial of due process. Mother filed a second motion to dismiss the petition for adoption
based on Probate Code section 1516.5, arguing it was unconstitutional as applied to her



                                             5
because there had been no showing of parental unfitness and termination of her parental
rights would violate due process.
       At the hearing on the motions, a child welfare supervisor from the Yolo County
Department of Social Services (the department) testified there was no documentation of a
referral on this minor in 2009, however there was a referral in May 2009 for the minor as
a child of a mother who had a referral for delivering a baby born positive for drugs. No
further investigation was done on the minor because he was safe in the care of the
paternal grandmother and the mother refused services as to the newborn. The court
continued the hearing and ordered a referral to the department pursuant to former
section 1513(c).
       At the hearing on the motions to dismiss on January 28, 2013, a representative of
the department appeared with county counsel and informed the court that the department
had no concerns with the minor being in the guardian’s custody. The department would
intervene and file a petition only if the guardianship were to be dissolved. Mother then
took the position that the guardianship should be dissolved as it was the only way to
remedy the previous failure to refer the case to the child welfare agency. The court
responded that all the statute required was a referral and declined to dissolve the
guardianship at this late date because doing so was not in the minor’s best interests. The
court denied the motion to dismiss the petition to terminate parental rights based on
failure to comply with section 1513(c), finding that the flaw in failing to refer the case
had been corrected. The court also denied the second motion based on Probate Code
section 1516.5 without prejudice to reopen the issues.
       Trial on the request to terminate parental rights commenced January 10, 2014.
Mother renewed her motions to dismiss the proceeding based on the previous failure to
refer the case to the child welfare agency as required by section 1513(c) and on the
argument that section 1516.5 was unconstitutional as applied. The court again denied
both motions.

                                              6
       The guardian testified that guardianship orders issued in May 2009 and were
preceded by a temporary guardianship. The guardian testified about visitation that
occurred during the guardianship. Of the 18 visits the guardian arranged and supervised,
mother did not attend 12 and was late for the remaining six. Mother then had supervised
visits at the center but did not have contact with the minor after February 2011. The
guardian said she began adoption proceedings a year later. The court subsequently
ordered a total of three visits supervised by a therapist. Mother was late to the second
visit and did not attend the third visit. There was no further contact between mother and
the minor after October 19, 2012. The guardian testified about the minor’s current
circumstances. The guardian stated that she became concerned about the minor due to
the parents’ lack of stability and changed her focus from guardianship to adoption. She
believed adoption was in the minor’s best interest because it would provide stability for
him.
       Linda Herrera, the director of supervised visitations at the center, testified the
visits began July 11, 2010. Visits that did occur went well with no problems but were
ultimately terminated in April 2011 due to excessive absences. Mother visited twice in
July and once in September and November of 2010 and once in January and February of
2011. Mother did come in May 2011 and was told that she was disenrolled due to
absences.
       The therapist who supervised the visits in the fall of 2012 testified that all the
parties arrived in a timely fashion for the first visit. At first, the minor was anxious but
seemed glad to see mother as the visit progressed. Both mother and the minor became
agitated and anxious, and the therapist intervened to restore calm and the interaction
normalized. At the second visit, mother was late. The minor was calmer but had a cold
and was more withdrawn but, after engaging in play therapy, he was more relaxed and
willing to play with mother. Mother did not come to the third visit and there was no
communication from her. The therapist spent the hour with the minor who was

                                              7
disappointed and upset. The therapist said the minor did remember mother although he
sometimes referred to her as “aunt.” The therapist felt that the therapeutic work in the
first two visits helped mother and the minor reconnect and the minor looked forward to
seeing mother again.
       Mother testified she did oppose the guardianship when it was initiated but was
now asking to terminate it because it was not in the minor’s best interest. Mother agreed
she lied to the probation officer who investigated the adoption case, telling him she only
had one child, while in fact she had a daughter in May 2009, born addicted to
methamphetamine, that she gave up for adoption. Mother recognized that the minor
needed a stable home and, while she currently could not give him that, she did not want
him adopted. Mother said it was important for a mother and child to be together and she
would be able to provide for him in eight months because she was sober and working.
Mother said she did not attend the third therapeutic visit because she had relapsed and
had not seen the minor in the 18 months since. Mother estimated that she had
approximately 20 visits of one to two hours with the minor since he was 14 months old.
Mother acknowledged she had been in three court-ordered treatments and was currently
in a fourth but believed she was now strong in her recovery. She had been sober for a
year from October 2012 to October 2013 before the arrest which led to the current drug
court referral. Mother testified she completed the inpatient portions of the first three
programs but not the aftercare and was now in an intensive outpatient program.
       Dr. Ross Thompson, a distinguished professor of psychology and an expert in
child development and attachment, testified that a child’s relationship with the caregiver
is foundational to the child’s sense of security. Because a young child does not have a
developed sense of past or future, regular contact with the primary caregiver is essential
to maintaining a feeling of being able to count on a caregiver. Infrequent visits over time
from a biological parent would not maintain the sense of that person as a primary
caregiver, but visits could be a wonderful play experience. Dr. Ross testified that, if a

                                              8
child has a history of being let down by relationships, then the child comes to expect that
and will be guarded and cautious in new situations, affecting the child’s ability to develop
healthy relationships over time.
                                              C
                                   The Statement Of Decision
       The court issued its statement of decision in March 2014.
       The court indicated the termination of parental rights in the case was governed by
Family Code section 7802 and the elements of Probate Code section 1516.5, which had to
be found by clear and convincing evidence.
       The court found that mother did not have legal or physical custody of the minor
and had not had such custody since the temporary guardianship was granted in April
2009. Further, from the time the minor was about 15 months old to the present, the minor
has been in the guardian’s care. Both mother and father were intermittent presences in
the minor’s life. Mother persistently expressed interest in being a parent to the minor but
“failed to show up for that role for the last four” years of the minor’s life. The minor had
a relationship with both mother and the guardian who was the primary caregiver for the
minor. Mother had a strong attachment to the minor but there was no evidence the minor
had the same level of attachment to mother. Further, the attachment did not rise to the
level of caregiver despite the minor’s affection for, and recognition of, mother in the 20-
40 hours of visits over the last five years. The minor needed stability. Mother’s missed
visits were stressful for the minor, although buffered to some degree by the guardian’s
presence as primary caregiver. Mother had no track record of successful rehabilitation
from drug use outside a residential program and her current prospects for success were
slim. Mother conceded she currently cannot parent the minor, but opposed adoption.
Her position reflected her desires but not the minor’s best interests. It was undisputed
that the minor was thriving in the guardian’s care and would benefit from being adopted
by the guardian. The court found there was clear and convincing evidence it was in the

                                              9
minor’s best interest to terminate mother’s parental rights. The court ordered mother’s
parental rights terminated, continued the guardianship, and set a date to review the
adoption petition.
                                        DISCUSSION
                                                I
                             Order Terminating Parental Rights
       Mother argues reversal of the order terminating parental rights is required because
she was denied due process in the underlying guardianship when the probate court failed
to comply with a mandatory statutory duty to refer the case for an investigation by a
social worker to determine whether child welfare services should be provided. Mother
contends that had she had an opportunity to reunify in a dependency proceeding she
would have been provided due process and counsel and the belated referral during the
pendency of the petition to terminate parental rights did not cure the error.
       When a guardianship petition is filed in the probate court, the provisions of
Probate Code section 1513, which govern investigation of the circumstances surrounding
the petition, apply. (Prob. Code, § 1513.) One circumstance is the possibility that a
dependency proceeding might be more appropriate than a probate guardianship. (Prob.
Code, § 1513, subd. (b) [formerly § 1513, subd. (c)].)
       In 2009, when the petition in this case was filed, former section 1513(c) provided:
“If the investigation finds that any party to the proposed guardianship alleges the minor’s
parent is unfit, as defined by Section 300 of the Welfare and Institutions Code, the case
shall be referred to the county agency designated to investigate potential dependencies.
Guardianship proceedings shall not be completed until the investigation required by
Sections 328 and 329 of the Welfare and Institutions Code is completed and a report is
provided to the court in which the guardianship proceeding is pending.” The statute
requires only that the case be referred, not that the child welfare agency file a dependency
petition or provide services in lieu of filing a petition.

                                               10
       Two years after the guardianship was granted, section 1513(c) was interpreted in
Guardianship of Christian G. (2011) 195 Cal.App.4th 581 (Christian G.), an appeal from
the appointment of a guardian. (Christian G., at p. 588.) In that case, the at-risk minor
remained in the father’s custody until relatives were appointed as temporary guardians.
(Christian G., at pp. 588-589.) There was a probate court investigation but the case was
not referred to Child Protective Services despite the father’s insistence that only it could
take his child.3 (Christian G., at p. 595.) The father objected to the guardianship and
litigated the matter in contested hearing. (Christian G., at pp. 590, 593-594.)
       The Christian G. court observed that section 1513(c) was phrased in mandatory
terms and the legislative history supported the conclusion that the referral was
mandatory, but acknowledged that the provision was “honored ‘more in the breach than
the observance’ ” and that, while claims of parental unfitness were common in probate
guardianships, referrals were rarely made. (Christian G., supra, 195 Cal.App.4th at
pp. 603-604.) This case is an example of that practice.
       Christian G. held “that the probate court, having received information constituting
an allegation of unfitness, whether from the investigator’s report or from the pleadings
themselves, is directly obligated to order the case referred” to the appropriate child
welfare agency. (Christian G., supra, 195 Cal.App.4th at p. 604.) The court reversed the
guardianship appointment finding that, under the facts of that case, failure to make the
mandatory referral to the child welfare agency was prejudicial to the father.
(Christian G., at pp. 607-611.)
       The case before us is factually and procedurally distinguishable from Christian G.
Here, the orders appointing the guardian were final in 2009 as no appeal was taken.



3       Child Protective Services was involved in the case only insofar as it recommended
that the relatives pursue a probate guardianship. (Christian G., supra, 195 Cal.App.4th at
p. 589.)

                                             11
(Prob. Code, § 1301, subd. (a).) The guardianship orders cannot be challenged as void
since the court had jurisdiction of the parties and the subject matter. (Adoption of
Myah M. (2011) 201 Cal.App.4th 1518, 1531.) At best, the failure to refer the case to the
department was an act in excess of jurisdiction which is valid until set aside and the
parties may be precluded from doing so by the passage of time. (People v. Ruiz (1990)
217 Cal.App.3d 574, 584.) Moreover, while mother opposed the guardianship at the
outset, and at some point later in the litigation, during much of the guardianship and at
the time of the court’s ruling at the termination hearing, she no longer did so.
       The question is whether the failure to refer the case to the department in 2009
deprived mother of the opportunity to reunify with the minor and created a denial of due
process in the termination proceeding. The facts do not support mother’s contention that
the termination proceedings were fundamentally unfair as a result of the probate court’s
failure to make a referral in 2009.
       Despite mother’s speculative claim that the department would have initiated a
dependency, that she would have participated in services and regained custody, the actual
facts belie the speculation. By the time the guardianship petition was filed, the minor had
already been in the paternal grandmother’s care for at least 10 days with no contact from
mother. The petition did allege facts, which would have come within the provisions of
Welfare and Institutions Code section 300, however, by the time the court investigator’s
report was available to the probate court, the minor had continued in the paternal
grandmother’s care for two months. The department was aware a referral had been made
with respect to the minor’s infant sibling, but no investigation occurred in Yolo County
because the minor was safe in the paternal grandmother’s care and mother had refused
services as to the infant. The department is empowered to intervene only if a child is at
risk. (Welf. & Inst. Code, §§ 300, 300.2.)
       Even before the paternal grandmother filed the petition for guardianship, the minor
was in her physical custody and was not at risk of harm from mother. At the beginning

                                             12
of the guardianship, the probate court made efforts to monitor mother’s compliance with
programs and direct her to services in order to stabilize her so that regular visitation could
occur. However, over the years of the guardianship, mother was in and out of custody,
was ordered to complete four drug treatment plans, successfully participating in only the
structured residential treatment portion of the programs, and visited the minor
intermittently. When the probate court did belatedly refer the case to the department, the
result was virtually identical to its response in 2009. The minor was in the care of the
guardian and not at risk unless the guardianship was terminated.
       Unlike the minor in Christian G., the minor was safe in the custody of a relative
when the guardianship petition was filed. Mother had the opportunity to access services
early in the process either through the child welfare agency or by complying with the
probate court directives. Mother rejected both. She has continued to engage in a lifestyle
of petty crimes and drug abuse and has not taken responsibility for her actions which led
to the termination of her parental rights. As late as the termination hearing, she blamed
her continued relapses and drug use on missing her son and being alienated from him
rather than her own choices.
       Mother was not prejudiced by the probate court’s failure to refer her to the
department at the outset of the guardianship proceeding because the facts show the
outcome would have been unchanged had the referral occurred. Mother has not
demonstrated a denial of due process in the termination proceeding.




                                             13
                                             II
                             Indian Child Welfare Act (ICWA)
       Mother argues that reversal is required because the probate court failed to comply
with the inquiry requirements of ICWA. Mother correctly notes that the record does not
demonstrate that anyone inquired about her Indian heritage.4
       ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting tribal
participation in, proceedings for both guardianship and termination of parental rights.
(25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912; Welf. & Inst. Code, §§ 224-224.6.)
The court and the party seeking either guardianship or termination of parental rights
“have an affirmative and continuing duty to inquire whether a child is or may be an
Indian child.” (Cal. Rules of Court, rule 5.481(a).) That party must ask the parent
“whether the child is or may be an Indian child and must complete the Indian Child
Inquiry Attachment (form ICWA-010(A)) and attach it to the petition.” (Cal. Rules of
Court, rule 5.481(a)(1).) At the first appearance by a parent at the initiation of any
guardianship or proceeding to terminate parental rights, the court must order the parent
“to complete Parental Notification of Indian Status (form ICWA-020).” (Cal. Rules of
Court, rule 5.481(a)(2).)
       Here, the record shows that the court investigator for the guardianship inquired
about the paternal grandmother’s Indian heritage but does not show the investigator asked




4      Both mother and the guardian filed requests that this court receive additional
evidence on this point. We declined to do so and note, in passing, that the additional
evidence proffered by the parties on whether there was inquiry and whether mother has
any Indian heritage is in conflict. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1389
[Appellate courts are not triers of fact].)

                                             14
mother about her Indian heritage when she was interviewed. 5 There is no ICWA-010(A)
attached to the guardianship petition, although form GC-210(CA), which is attached,
states the child is not a member of, or eligible for membership in, an Indian tribe
recognized by the federal government. Mother appeared at the first hearing on the
guardianship petition in May 2009. The minute order does not reflect that the court
inquired about her Indian ancestry or provided an ICWA-020 form to her. No ICWA-
020 form appears in the record. Similarly, neither the petition to terminate parental rights
nor the probation report suggest there was any inquiry made of mother’s possible Indian
heritage and the record does not show the court inquired about the parties’ Indian heritage
when mother was served with the petition to terminate parental rights.
       Part of the duty of inquiry is to provide information to the court so that the court
can rule on the question of whether ICWA applies. (In re L.S. (2014) 230 Cal.App.4th
1183, 1198.) Neither the paternal grandmother nor the court investigator provided any
information on mother’s Indian heritage or gave any explanation why the information
was not available. If the court inquired and made the ICWA-020 form available to
mother, that information is not reflected in the minutes of her first appearance. In the
absence of information, we cannot say that the duty of inquiry was satisfied by anyone.
Remand is required to permit the court to clarify the facts of inquiry and possible Indian
heritage and determine whether further action is necessary. We are mindful that vague
information will not support further inquiry or notice (In re Hunter W. (2011)
200 Cal.App.4th 1454, 1467-1468), but the record must reflect that some inquiry was
made and the results thereof (In re L.S., at p. 1198).



5      Mother suggests that notice to the Cherokee tribes is required based on the
paternal grandmother’s statement to the court investigator. We disagree. The paternal
grandmother’s statement does not claim Cherokee heritage, it disavows any significant
connection. The statement does not provide sufficient information of Indian heritage for
the court to have reason to believe the minor may be an Indian child.

                                             15
                                       DISPOSITION
       The order terminating parental rights is reversed. The case is remanded to the trial
court for the limited purpose of determining whether the inquiry provisions of ICWA
were satisfied. If not, the court is directed to inquire of mother whether she has Indian
heritage and, if so, to require her to provide all known information to complete an ICWA-
030 form for notice to the relevant tribe or tribes. If mother does not identify any Indian
heritage or if, after notice, the court determines ICWA does not apply, the orders
terminating parental rights shall be reinstated. If the court finds after inquiry and notice
that ICWA applies, the court shall hold such further proceedings as are appropriate.



                                                         ROBIE                 , J.



We concur:



      BLEASE                 , Acting P. J.



      MURRAY                 , J.




                                              16
