(Super. Ct. No. 09AD00144)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Mother G.C. (mother) appeals from a judgment under Probate Code*fn1 section 1516.5 terminating her parental rights to her daughter, G.C. (minor). On appeal, mother contends: 1) failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA); 2) that the probate court employed an incorrect standard of proof; 3) that substantial evidence does not support the probate court's decision to terminate parental rights; and 4) due process violations. As we will explain, mother's contentions fail to persuade. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Establishment of the Guardianship
Minor was born in February 2006 to mother and her boyfriend, T.C. (father). In September 2006, mother became concerned that Child Protective Services (CPS) would remove minor because of mother's ongoing drug use. Mother contacted the paternal aunt, respondent D.R., who agreed to take minor into her home. Mother then signed a private agreement with D.R. relinquishing her parental rights to minor.
D.R. filed a guardianship petition in November 2006. Mother consented to the guardianship in January 2007. The probate court granted the petition on February 1, 2007 and issued a letter of guardianship appointing D.R. as guardian on May 16, 2007.
Petition to Terminate Guardianship/Adoption Petition
Mother apparently filed a petition to terminate the guardianship in February or March 2009, and the matter was set for hearing on March 26, 2009.*fn2 D.R. filed an adoption petition/petition to terminate parental rights pursuant to Family Code section 7822 (abandonment) on March 11, 2009. Probate investigator Bonnie Huffman filed a memorandum with the probate court on March 17, 2009, regarding mother's petition to terminate guardianship. According to Huffman, local rules prevented guardianship orders while adoption proceedings were pending.*fn3 Huffman represented that mother understood that she would be able to reopen her "[p]robate petition" after the Family Court ruled on the adoption petition Mother did not appear at the hearing on her petition to terminate guardianship, nor did she serve anyone; the matter was apparently "dropped" from calendar.
The July 2009 "Termination/Abandonment Report" prepared by the probation officer found that although mother frequently visited minor between September 2006 and early March 2007, D.R. allowed only supervised visits after mother started using illegal substances in April 2007. Mother stopped visiting and moved to New York in May 2007, where she stayed until February 2008. Minor lived with D.R. and her husband J.R. throughout this entire time.
Mother resumed her relationship with father after returning to California, and by September 2008, they were employed and seemed to have stabilized; D.R. let them visit minor again. However, by January 2009 they had been evicted from their residence and stopped contact with minor after February 1, 2009.
The report noted that minor's bedroom at D.R.'s house was very age-appropriate and that minor interacted well with D.R. and J.R., who were extremely committed to minor. However, since in the opinion of the probation officer the parents had not "willfully abandoned" minor under Family Code section 7822, the report recommended denying D.R.'s petition.
Amended Adoption Petition
On March 11, 2010, D.R. and J.R. filed an amended adoption petition/petition to terminate parental rights pursuant to section 1516.5 or Family Code section 7822.
A supplemental report was filed by the probation department in May 2010. According to father, he last saw minor in February 2009, but talked to her "on several occasions" by phone. Father said he had not used illegal substances since 2006. He had no new criminal cases since 2006, and his recent incarcerations resulted from not reporting to his parole agent.
Mother's parental rights had previously been terminated as to one of her three other children; the remaining two lived with their biological father. Although mother had a history of methamphetamine use, she denied using drugs since 2003. She was still in a relationship with father and wanted minor returned to her care.
D.R. had recently given birth to a daughter and was seeking employment. J.R. had started working as a delivery driver. The report noted that minor continued to interact very well with the guardians, who were very supportive of her. Minor knew D.R. and J.R. were her aunt and uncle but called them mom and dad.
The probation officer opined that the parents did not abandon minor pursuant to Family Code section 7822, citing mother's five supervised visits with minor between July 2009 and March 2010, and made no recommendation as to section 1516.5.
Probate investigator Robin Pearl filed a report in July 2010. In a June 2010 telephone interview, the parents said they recently "lost" their Sacramento residence and were now living in the town of Orcutt (in Southern California). Mother continued to pay for supervised visits when she could afford it, while father did not visit. Mother had participated ...