Filed 8/23/17 Guardianship of S.T. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



Guardianship of the Person of S.T., a Minor. D070789


ATHENA HERRICK et al.,

Petitioners and Respondents,

v.

V.T.,

Objector and Appellant.

(Super. Ct. No. 37-2015-00012139-
PR-GP-CTL)

APPEAL from an order of the Superior Court of San Diego County, Edlene C. McKenzie, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part and conditionally reversed with directions.
Law Offices of Rosemary Leonard and Rosemary Meagher-Leonard for Objector and Appellant.
Lopez & Wilmert, Larisa L. Wilmert and Darin J. Wilmert for Petitioners and Respondents.
The probate court awarded guardianship of S.T. to John, Sharlene, and Athena Herrick (collectively Herricks). S.T.'s mother, V.T. (Mother), appeals the court's order, contending the order should be reversed because: (1) the court applied the incorrect standard of proof; (2) the court's findings are not supported by substantial evidence; and (3) the court failed to make the required findings under the Indian Child Welfare Act of 1978 (ICWA), title 25 United States Code sections 1901 et seq. We determine the probate court applied the correct standard of proof and substantial evidence supports the court's findings. However, we conditionally reverse the order and remand the matter to the probate court for the sole purpose of requiring compliance with ICWA, if necessary.
FACTUAL AND PROCEDURAL BACKGROUND
Mother began a romantic relationship with Daniel Gonzalez after the two met while attending UEI college. During her relationship with Gonzalez, Mother became pregnant with S.T. Gonzalez wanted Mother to obtain an abortion. He has played no role in parenting his child with Mother.
Mother did not tell her mother, C.T., that she was pregnant until her sixth or seventh month of pregnancy. She was afraid that she would be disappointing her mother by getting pregnant. C.T. responded positively to the news and bought Mother items for the baby.
While attending UEI college, Mother met and became close friends with Athena. Athena introduced Mother to Athena's parents, Sharlene and John, toward the end of 2011. Athena lived with her parents in a two-bedroom apartment.
A few weeks after S.T. was born on June 14, 2012, Mother would bring her to the Herricks' apartment to visit, almost on a weekly basis. Although she lived with C.T., Mother would spend multiple days per week at the Herricks' apartment and eventually began spending the night. By September 2013, Mother had moved in with the Herricks. At that time, John financially supported Mother and S.T. And the Herricks served as the primary care giver for S.T. while she and Mother lived with them.
In October 2013, the Herricks discussed with Mother the need to move to a three-bedroom apartment to better accommodate Mother and S.T. living with them. However, in late December 2013, Mother and S.T. moved out of the Herricks' apartment.
In February 2014, Mother and S.T. moved to Las Vegas. C.T. arranged for Mother and S.T. to live with her grandparents while Mother looked for a full-time job. Two months after moving to Las Vegas, Mother found a job as a nanny. However, Mother's living situation with her grandparents was less than ideal. She texted Athena that her grandmother was yelling at both her and S.T. Mother believed the living situation was bad for S.T.
In April 2014, Athena and Sharlene traveled to Las Vegas for three days to visit Mother and S.T. On the first night she was there, Mother asked Athena to watch S.T. while she worked. In June 2014, Mother asked Athena and Sharlene to come to Las Vegas to get S.T. and take her back to San Diego for two to four weeks. S.T. was two years old at the time.
After bringing S.T. back to San Diego, Athena asked Mother multiple times when she was returning to San Diego. Although she did not move back to San Diego, Mother tried to visit S.T. every four to five weeks. When she did visit S.T., Mother usually stayed with the Herricks. However, on one of her visits, the Herricks could not accommodate her. Mother thus wrote a post on Facebook "asking for a place to crash with S.T."
In September 2014, Mother signed a temporary guardianship agreement consenting to the Herricks serving as S.T.'s guardian "[f]or as long as necessary, beginning on September 3, 2014." Mother claimed that she agreed to the temporary guardianship to allow the Herricks to seek "emergency medical attention" because they were taking S.T. on a camping trip.
In April 2015, the Herricks filed a petition for appointment as guardian of S.T. In doing so, the Herricks stated that guardianship was necessary or convenient because:
"S.T. ha[d] lived with [them] since 6/16/14 when [they] picked her up from Las Vegas with the agreement that S.T.'s mother would move to San Diego no later than 9/1/14. Previously, [S.T.] lived with [the Herricks] for 3 months in 2013 and ha[d] stayed periodically since birth without her mother. [The Herricks] need to be able to act on her behalf in case of a medical emergency, and would like to add her to [their] health insurance."

The Herricks also applied ex parte, without notice to Mother, to become S.T.'s temporary guardian. The court denied the application, finding no urgency or extraordinary circumstances supporting an ex parte order for guardianship without notice to Mother.
In July 2015, Mother returned to San Diego and removed S.T. from living with the Herricks. In addition, near the time Mother removed S.T., C.T. filed a petition to be named guardian of S.T. with Mother's consent.
On July 29, 2015, the court held a hearing on the competing petitions to be named S.T.'s guardian. The court specifically noted that Mother "does not seek custody of [S.T.] and is in support of the guardianship petition filed by [C.T.]." The court appointed the Herricks as temporary coguardians of S.T. The court also established visitation for Mother and C.T. and ordered that Mother return S.T. to the Herricks. The court continued the hearing to consider the competing guardianship petitions to October 28, 2015.
On October 28, 2015, the court set a two-day trial to consider the competing guardian petitions on February 10 and 24, 2016. Subsequently, the court continued the trial to May 11, 2016. In addition, C.T. withdrew her petition to be named S.T.'s guardian.
The trial regarding the Herricks' petition to be named S.T.'s coguardians was held on May 11 and 17, 2016. The court heard testimony from Tiffany Bui, a guardianship investigator for family court services; Ashly Bryant, a social worker; Mother; Rachel Dexter, a friend of Mother; Sharlene Herrick; John Herrick; Athena Herrick; and C.T. The court noted that there was conflicting evidence on "some key points." In resolving these conflicts, the court noted that it "did not find persuasive [Mother's] testimony" and found her responses to "key questions hesitant and evasive." Likewise, the court found C.T.'s testimony "not persuasive." In addition, the court determined Dexter's testimony "was not particularly helpful."
Although Bui testified that she recommended that the Herricks' petition for coguardianship of S.T. be denied, the court found it "significant" that Bui stated her recommendation might be different if she knew that Mother had declined to take custody of S.T. at a court hearing in July 2015.
The court also found the testimony of Sharlene, John, and Athena Herrick credible.
The court ultimately granted the Herricks' petition for guardianship. In doing so, the court found:
"The Herrick's [sic] have provided day to day care for S.T. for over 1/2 of her life. They have provided a stable residence, as a family unit. The court finds by a preponderance of the evidence the Herrick's [sic] have assumed the role of parent on a day to day basis, fulfilling S.T.'s physical needs and psychological needs for care and affection for a substantial period of time. They have the financial means together to support and provide a nurturing stable home. The court finds an award of custody to the Herrick's [sic] would be in S.T.'s best interest and parental custody to the mother would be detrimental. The court finds [Mother] has not provided evidence to the contrary by even a preponderance."

Mother timely appealed.
DISCUSSION
I
THE BURDEN OF PROOF APPLIED BY THE COURT
Mother argues that the court applied the incorrect burden of proof in awarding the Herricks coguardianship of S.T. Relying on Guardianship of Stephen G. (1995) 40 Cal.App.4th 1418, Mother maintains an award of guardianship to a nonparent, over the objection of a natural parent, requires a finding by clear and convincing evidence that an award of custody to the parent would be detrimental to the child and an award of custody to the prospective guardian would be in the child's best interest. (Id. at p. 1432.) However, Mother's argument overlooks more recent changes to the Family Code applicable here.
The Probate Code now specifies that the appointment of a guardian is governed by the Family Code chapters beginning with sections 3020 and 3040. (Prob. Code, § 1514, subd. (b).) Family Code section 3020, subdivision (a) declares that "the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children." Under Family Code section 3040, subdivision (a), parents are first in the order of preference for a grant of custody, but "the court and the family" are allowed "the widest discretion to choose a parenting plan that is in the best interest of the child." (Fam. Code, § 3040, subd. (c).) Before granting custody to a nonparent over parental objection, the court must find "clear and convincing evidence" (Fam. Code, § 3041, subd. (b)) that "granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child." (Fam. Code, § 3041, subd. (a).)
In 2002, the Legislature added subdivisions to Family Code section 3041 emphasizing the importance of a stable home environment for the child. (Stats. 2002, ch. 1118, § 3.) It specified that " 'detriment to the child' includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents." (Fam. Code, § 3041, subd. (c).) And, "if the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c), this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary." (Fam. Code, § 3041, subd. (d).) Thus, the Legislature has determined that the critical finding of detriment to the child does not necessarily turn on parental unfitness. It may be based on the prospect that a successful, established custodial arrangement would be disrupted. (See Guardianship of L.V. (2006) 136 Cal.App.4th 481, 491.)
Here, the court applied the correct burden of proof under Family Code section 3041. The court found, by a preponderance of the evidence, that the Herricks had assumed, on a day-to-day basis, the role of S.T.'s parents, fulfilling both the child's physical and psychological needs and had undertaken that role for a substantial period. (Fam. Code, § 3041, subd. (c).) Further, under Family Code section 3041, subdivision (c), the court's determination that the Herricks were people described under subdivision (c) also constituted a finding that custody of S.T. with the Herricks is in the best interest of S.T. and that parental custody would be detrimental to her absent a showing by a preponderance of the evidence to the contrary. (See Fam. Code, § 3041, subd. (d).) And the court explicitly found that Mother "has not provided evidence to the contrary by even a preponderance." The court did not err in applying a preponderance of the evidence burden of proof below.
II
SUBSTANTIAL EVIDENCE
Mother next "challenges the lower court's determination of disputed facts." Mother lists the disputed facts to include the court's "disregard" of Bui's written reports and most of her testimony, the weight the court gave to the Herricks' testimony, and the lack of consideration given to Mother's evidence and testimony. It appears that Mother is challenging the sufficiency of the evidence.
"In reviewing the sufficiency of evidence on appeal, we resolve all conflicts in favor of the prevailing party and we indulge all legitimate and reasonable inferences to uphold the verdict if possible. 'It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. . . .' " (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1043.) Our review is not limited to appraising " 'isolated bits of evidence selected by the [appellant].' " (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.) We are required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict. (Minelian v. Manzella (1989) 215 Cal.App.3d 457, 463.) Thus, it is not our role to reweigh the evidence, redetermine the credibility of the witnesses, or resolve conflicts in the testimony, and we will not disturb the judgment if there is evidence to support it. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766; Leff v. Gunter (1983) 33 Cal.3d 508, 518.) Credibility is an issue of fact for the finder of fact to resolve (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622), and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact (In re Marriage of Mix (1975) 14 Cal.3d 604, 614). "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.) Because the Herricks were the prevailing party at trial, we review the evidence in a light most favorable to them. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.)
Although Mother raises a substantial evidence challenge, she fails to cite appropriately to the record to mount such a challenge. She does not provide us with the evidence that supports the court's findings and explain how this evidence is insufficient. Instead, Mother focuses on evidence she or third party witnesses provided during trial. However, the court determined that Mother's evidence, especially Mother's and C.T.'s testimony, was unbelievable. Also, we simply cannot ignore the determinations the court reached regarding Bui's testimony and reports, and substitute our own conclusions based on the evidence presented at trial. Alternatively stated, we cannot reweigh the evidence as Mother urges us to do. (See Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.) As such, Mother has not carried her burden to show us that substantial evidence does not support the court's findings.
Mother additionally insists the court erred in failing to explicitly make a finding that guardianship is necessary or convenient. However, Mother does not point us to any California authority that requires a court to specifically make such a finding. In addition, on the record before us, it is clear the court found guardianship both necessary and convenient.
Probate Code section 1514, subdivision (a) allows the probate court to appoint a guardian of the person of a minor, pursuant to a guardianship petition, "if it appears necessary or convenient." (Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 1430.) When appointing a guardian, the court is to be guided by " 'the best interest of the child with respect to its temporal and its mental and moral welfare.' " (Suleman v. Superior Court (2010) 180 Cal.App.4th 1287, 1296.) Here, the court was correctly guided and found guardianship would be in S.T.'s best interest, noting that the Herricks have fulfilled, on a day-to-day basis, S.T.'s physical needs and psychological needs for care and affection for a substantial period of time. In making these determinations, the court also had to find that guardianship was necessary or convenient. Mother has not shown why the court's finding is not supported by substantial evidence.
Also, in their petition to be appointed coguardians, the Herricks stated that guardianship was necessary or convenient because: (1) S.T. had lived with them for the past year, (2) S.T. had lived with them for three months shortly after her birth before moving to Las Vegas, and (3) they would like to add S.T. to their health plan so they can better take care of her. The court found all these reasons to be true. It found the Herricks had cared for S.T. for over half her life. In addition, the court noted that the Herricks had the financial means together to support and provide a nurturing a stable home, which includes taking care of her physical (food, clothing, housing, and medical) needs. These findings show that the court carefully considered the issue and determined that guardianship appeared necessary or convenient. (Guardianship of Kaylee J., supra, 55 Cal.App.4th at p. 1430; Prob. Code, § 1514, subd. (a).)
III
ICWA
Mother's final argument is that the order must be reversed because the court did not comply with ICWA. We note that Mother never raised this issue with the court below. In addition, it was not mentioned whatsoever during trial. That said, the parties agree that a parent does not waive an ICWA notice issue by failing to raise it below. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1385.)
ICWA sets minimum standards for removing Indian children from their families, and its purpose is to protect the security and stability of Indian families and tribes when it becomes necessary to place an Indian child in foster care or in an adoptive home. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.) ICWA applies to "most proceedings involving Indian children that may result in an involuntary foster care placement; guardianship or conservatorship placement; custody placement under Family Code section 3041; declaration freeing a child from the custody and control of one or both parents; termination of parental rights; or adoptive placement." (Cal. Rules of Court, rule 5.480.) Whenever the state "knows or has reason to know" (25 U.S.C. § 1912(a)) that an Indian child is involved in an involuntary dependency proceeding, and the state seeks to place the child in foster care or terminate parental rights, it must notify the child's Indian tribe of the proceedings and its right to intervene. (25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912–1921.) An "Indian child" is defined as any unmarried person under the age of 18 who is (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4); Welf. & Inst. Code, § 224, subd. (c).)
To invoke the notice requirements of ICWA, there must be "more than a bare suggestion that a child might be an Indian child." (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.) In that case, the father told the juvenile court that he might have some Native American heritage and that the matter needed to be researched. The father later retracted that claim. The appellate court held that, because the basis upon which to suspect that Jeremiah might be an Indian child had been debunked, ICWA noticing procedures were unnecessary. (Id. at p. 1521.) Here, there was conflicting evidence in the record regarding whether S.T. might be an Indian child, but we determine the evidence, albeit slight, was sufficient to trigger a duty to inquire regarding ICWA's application here. (See rule 5.481(a).)
When the temporary guardianship agreement was submitted, a completed "Indian Child Inquiry Attachment" (form ICWA-010(A)) accompanied it. On that form, signed by Athena, it indicated that S.T. is or may be a member of or eligible for membership in the Algonquin tribe. In addition, the form included the following information: "Mother is Native American on her father's side, a small percentage, maybe 5%. She thought maybe Algonquin tribe but was unsure. Mother receives no benefits from the tribe; she is not a member." Thus, based on the Indian Child Inquiry Attachment to the temporary guardianship, it appears S.T. could be subject to ICWA.
Curiously, S.T.'s maternal grandmother submitted a subsequent Indian Child Inquiry Attachment, which represented that S.T. "has no known Indian ancestry." Therefore, the form submitted by C.T. called into question the information provided by Athena.
In addition, in Bui's guardianship investigation report, she noted: "The maternal grandmother and the mother reported that the child has a very small percentage of Native American ancestry, but is not registered to any tribe. The Herrick's [sic] reported that they do not know whether S.T. has Native American ancestry."
There is no indication in the record the court ordered Mother to complete a parental notification of Indian status (form ICWA-020) as required by rule 5.841. Nor is there any indication that Mother was asked about her Indian heritage beyond the general reference in Bui's report. On appeal, Mother does not take a definitive position as to S.T.'s status as an Indian child or her own American Indian heritage, but instead, observes, "there seems to be a question as to whether S.T. is Native American or not," and further notes, "no inquiry or determination [was] made by the Court as to this allegation." Because it does not appear the probate court sufficiently inquired as to S.T.'s American Indian heritage, in an abundance of caution, we must order a limited remand for the court to comply with the inquiry and notice provisions, if necessary, of ICWA. (In re Noreen G., supra, 181 Cal.App.4th at pp. 1388-1390.)
DISPOSITION
We order a limited remand with directions to the probate court to effectuate proper inquiry and to comply with the notice provisions of ICWA if Indian heritage is indicated. If, after proper inquiry and notice, a tribe determines the child is an Indian child, Mother may petition the court to invalidate the award of guardianship upon a showing that such action violated the provisions of ICWA. If S.T. is not found to be an Indian child, the order is affirmed. Each party shall bear their own costs.



HUFFMAN, Acting P. J.

WE CONCUR:



O'ROURKE, J.




DATO, J.