Guardianship of Sebastian R.

Filed 2/21/13 Guardianship of Sebastian R. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

The Round Valley Indian Tribe (the Tribe) removed Sebastian R. (Sam), T.R., D.R., and L.R., the children of Candice H. (mother), after a neighbor called to report suspected neglect. The Tribe contacted Audrey H. (great-grandmother), the paternal great-grandmother of the four children. Great-grandmother took the children into her home and filed a request in the Mendocino County Superior Court for a temporary guardianship over the children. The probate court granted this request. Subsequently, the probate court pursuant to former Probate Code section 1513, subdivision (c), referred the matter to the Mendocino County Department of Health and Human Services Agency (the agency) for a dependency investigation.[1] The social worker for the agency decided not to file a dependency petition pursuant to Welfare and Institutions Code section 300, and the probate court granted, over mother’s objection, the permanent guardianship request of great-grandmother.

Mother appeals the grant of permanent guardianship to great-grandmother. She contends that the probate court had a sua sponte duty to request the juvenile court to review the decision by the social services agency not to commence dependency proceedings. She also maintains, among other things, that the probate court did not comply with the requirements of the Indian Child Welfare Act, title 25 of the United States Code section 1901 et seq. (ICWA). We are not persuaded by mother’s arguments and affirm the judgment.

BACKGROUND

Removal of the Children

Mother and Sebastian R. (father) are both members of the Tribe, and have four children together. They separated in August 2010. The four children, Sam, T.R., D.R., and L.R. lived with mother after the separation.

On December 9, 2010, mother’s neighbor contacted the police and the ICWA advocate because she was concerned about the four children’s welfare. The Tribe removed the children and contacted great-grandmother in order to have her care for the children. Great-grandmother was also an enrolled member of the Tribe. Great-grandmother immediately applied to the court for guardianship of the children.

Petition for Temporary Guardianship

On December 16, 2010, great-grandmother filed a petition for a temporary guardianship of Sam, Jr., T.R., D.R., and L.R. At that time, Sam was six years old, T.R. was four years old, D.R. was two years old, and L.R. was less than a year old. Sam had cerebral palsy, lung disease, and severe asthma.

Great-grandmother alleged that the four children had been removed from mother’s home because the children had been left at home alone with a mentally incompetent woman who was also a drug addict and alcoholic. The home did not have any heat––except for the kitchen oven––and the children were hungry. She further alleged that mother was “a known long-term drug addict, and alcoholic.” Four-year-old T.R., according to great-grandmother, was acting as the mother to the younger children; she was preparing the food, and changing the babies’ diapers.

As of December 16, 2010, mother had not returned home; nor had she––to great-grandmother’s knowledge––contacted any person to check on the children’s welfare. Great-grandmother declared that she did not give notice to mother of the ex parte hearing regarding her request for a temporary guardianship because she “did not know the whereabouts” of mother.

Great-grandmother declared that she had worked for the Social Security Administration for 30 years and had reared three other grandchildren, who were “now law abiding, productive adults.” She also stated that she had been a foster mother to several unrelated children and that she had no criminal record. She maintained that she did not use drugs or alcohol and had a home with sufficient space for the children. Great-grandmother stated that father was currently in a rehabilitation program and would be living with her when released on December 29, 2010.

On December 20, 2010, father, a Tribe member, filed a form designating great-grandmother as the children’s Indian custodian.

The probate court held an ex parte hearing on great-grandmother’s request for a temporary guardianship on December 21, 2010. The court granted great-grandmother’s petition for a temporary guardianship of the four children.

Mother’s Ex Parte Request to Terminate the Temporary Guardianship

On December 23, 2010, mother filed an ex parte request to terminate the temporary guardianship. She asserted that she was not given notice of the temporary guardianship hearing. Mother attached a copy of restraining orders against father that were dated October 15, 2009; these orders protected mother and the older three children from father’s harassment. Mother also attached a safety plan she signed with the ICWA director. The safety plan stated, among other things, that mother would do random drug tests at the request of the Tribe’s ICWA program or Yuki Trails and that she would attend two meetings a month at Yuki Trails.

On December 28, 2010, the probate court held the ex parte hearing on mother’s request to terminate the temporary guardianship. The court ordered an investigation by Louis C. Bates, Ph.D., a court investigator, to determine the necessity of a guardianship. The court appointed counsel for the children and ruled that the temporary guardianship orders were to remain in effect. When mother asked about the criminal protective orders against father, the court responded that the protective orders did not bar contact between the children and him, and they did not prevent father’s living in the home with great-grandmother. They were “peaceful contact order[s],” which provided that father was not to harass, annoy, threaten, or batter mother or the four children.

Appointment of Counsel and Notice to the Tribe

On January 6, 2011, mother filed an ex parte request for counsel and visitation with the children. On January 10, 2011, the probate court appointed an attorney for mother, and ordered supervised visitation for two hours once a week. Mother told the court that both parents were members of the Tribe. The court ordered great-grandmother, with the assistance of minors’ counsel, to provide notice to the Tribe.

At the hearing on January 25, 2011, the court stated that great-grandmother had provided notice to the Tribe. The minors’ attorney reported that she had met with the children and that they appeared to be doing well under the care of great-grandmother and father.

The probate court held a review hearing on February 2, 2011. The court stated that ICWA applies to a probate guardianship but advised that its application to probate guardianships was a developing area of the law and it was unclear when the ICWA procedural requirements were to be met. The court explained: “Unlike a dependency case, there is not an investigating agency that can file a detention report with the court to indicate what’s been done. We have an investigator who prepares a report at the conclusion of the case. And at the outset we have the confidential bargaining screening form. . . . [¶] So procedurally the cases––the types of cases are not analogous. And a probate guardianship case simply doesn’t have the front-end information that a dependency case has. So it will be interesting to see what the Courts of Appeal find in these kinds of situations. I am not prepared to make a finding regarding active efforts today. . . .”

The probate court appointed counsel for great-grandmother and found great-grandmother to be the children’s Indian custodian “by designation of a parent and also by operation of state law given the temporary guardianship order.” The court maintained the temporary guardianship with great-grandmother. The court did not modify the visitation for mother but stated that the parties could agree to additional or longer visits.

A Second Petition for Guardianship by Mother’s Relatives and Mother’s Petition to Terminate the Temporary Guardianship

On March 14, 2011, mother’s sister (aunt) and her sister’s husband (uncle), filed a petition for guardianship of the children. Mother was living with aunt and uncle. Mother also filed a document consenting to their guardianship.

At the hearing on March 16, 2011, the probate court denied mother’s oral motion to terminate the temporary guardianship.

Two days later, on March 18, 2011, mother filed a written petition to terminate great-grandmother’s temporary guardianship. That same day, great-grandmother filed opposition to the guardianship application of aunt and uncle. On March 22, 2011, the probate court appointed counsel to represent father.

At the hearing on March 28, 2011, the parties agreed to proceed by declarations and stipulations in addition to oral testimony. The parties stipulated that father had completed a court-ordered 60-day residential treatment program; that father had engaged in court-ordered anger management sessions; that father had engaged in parenting classes; that mother and father had admitted using illegal drugs while living together; that mother had not engaged in drug-related treatment until March 24, 2011; and that mother had completed four drugs tests that were negative for all substances. They also stipulated that mother had refused a drug screen on December 1, 2010, and that her four drug tests had not been random or observed.

Great-grandmother and mother testified at the hearing. Great-grandmother described the extensive care that Sam needed because of his cerebral palsy. She stated that the children’s paternal aunt and grandmother helped with the children while she worked. Mother testified that she did not use drugs during any of her pregnancies. She claimed that she had gone to the store to get milk for the baby and left the children with her mother and her niece the night they were removed from her home. She admitted that the children were removed on December 9, 2010, and that she did not contact the ICWA advocate until December 20, 2010.

At the end of the hearing, the probate court stated that it was not entirely clear what the status of the children was with regards to ICWA. The court elaborated: “I believe they likely are Indian children. However, I must note that the temporary guardian did comply with the notice requirements more than 60 days ago and we’ve had no response from the Tribe. As you know, only the Tribe is able to make a determination that children are Indian children. So it is a little bit up in the air at this point.”

The probate court added that even if ICWA applied, it was difficult to imagine that a great-grandparent could “make so-called active efforts to keep the children in their home.” However, to the extent, ICWA requires that, the court found that great-grandmother met that requirement. The court stated that great-grandmother supported father and had helped care for the children when the parents needed her help. The court noted that it was “hard to say” whether these were “active efforts” but explained that great-grandmother did not have drug treatment resources that she personally could offer the parents.

The probate court elaborated: “In any event, even if this isn’t sufficient under the law, I’m finding that making active efforts before removal would have been futile given what the evidence shows. Mother went to ICWA. She made a safety plan and then she chose not to comply with it for several months. It’s hard to say whether somebody else offering different services would have had a better result in light of what actually transpired.”

The probate court stated that it found mother’s testimony about drug use “completely incredible” because she constantly contradicted herself regarding the dates she was sober. The court noted that it was the ICWA advocate that determined the children were not safe in mother’s home and that they had to be removed. The court found that mother did not show that the children were unsafe with great-grandmother even though father resided in her home with the children. Father was on probation for child cruelty but the court stressed that he had a subordinate role and was not the custodial parent. Father was attending his domestic violence class and maintaining contact with probation. The court concluded that the children were in need of a temporary guardian and that the guardianship with great-grandmother should remain in effect pending the investigation by Bates.

Tribe Intervention

The Tribe filed its notice of intervention on April 21, 2011. The Tribe stated that all four children were Indian children and subject to ICWA.

The Report of the Guardianship Investigator

On April 27, 2011, Bates, the guardianship investigator, filed his guardianship report. Bates noted that ICWA applied to all four children, and that both parents are members of the Tribe. Bates had spoken with Donna Christian, the intake worker for Child Protection Services (CPS). She stated that there had been a total of 11 referrals involving the children when mother and father were together, beginning in October 2004.

Bates reported that the four children were currently living with great-grandmother in her three-bedroom mobile home and father also resided in the home. Bates observed father, great-grandmother, and the children, and noted that the children “seemed safe and happy.” Father believed that the children should remain with great- grandmother and mother believed the children should be returned to her.

Mother told Bates that great-grandmother was attempting to take the children away from her by requesting a guardianship because father had failed to obtain full custody of the children when he had applied to the family court for full custody in October 2010. She “was adamant that she wanted the children returned to her and that they were unjustifiably removed from her care.” Mother was very angry and stated that if the children were not returned to her care she wanted them placed with aunt, mother’s sister. She maintained there was a conspiracy between the ICWA advocate and great-grandmother to remove the children from her and to place them with great-grandmother. Mother acknowledged a past drug problem but claimed she had been sober since May 2010. Mother, however, could not provide Bates with any evidence of sobriety; at this point in time, she had not attended 12-step meetings or a treatment program.

Mother had supervised visits one day a week. Bates observed visits between mother and the children at the tribal center on March 18, and April 8, 2011. Bates concluded that overall the visit on March 18 between mother and the children went well. However, when mother took the children into the kitchen, she questioned them about coming home and said, “You want to come home with me, don’t you.” During the second visit on April 8, L.R. was clinging to her mother and did not want to let go. Mother again talked about the children’s residing with her in the future. Bates also expressed some concern with mother’s failure to follow through with some safety concerns related to the children’s behavior and falling. He concluded that “[o]verall the visit went well and [mother] demonstrated an ability to manage all four children effectively.”

Bates interviewed T.R. She said that “things were good with her father” and, when asked about the situation when she was living with her mother, T.R. “got a distressed look on her face and replied that she didn’t want to go back to [mother’s home].” T.R. spoke about a man named “Dietry.” She reported that he lived with mother and sometimes fought with mother. T.R. disclosed that her mother and Dietry would “party with their friends, [and] the children [would be] left alone with no supervision.” T.R., according to Bates, was clear throughout the interview that she wanted to live with her great-grandmother and father.

Bates spoke to numerous people, including Lauren Whipple, the resident manager for the tribal housing program. She also had been a neighbor of the family when mother and father were living together. She stated that the primary reason eviction proceedings were started in September 2010 against mother was because of gunshots emanating from mother’s home. She divulged that there had been “partying” at the home; she characterized “the situation as ‘wild.’ ” Whipple asserted that the problems in the home continued after father left. She opined that mother and father could be competent parents if they were not using alcohol and drugs.

Bates concluded that the “main problem in this case is drug and alcohol abuse by both parents” and that both parents were in the early stages of recovery after many years of drug and alcohol abuse. He stressed that a second issue was violence. Father had a long history of violence and others alleged that mother was verbally aggressive when under the influence. Bates also expressed concern about the special needs of Sam. Bates admonished, “He is a severely disabled child with multiple problems that will never get better, but they [could] get worse if . . . not treated regularly.” The CPS records indicated that mother had medically neglected her children for the past five years.

Bates also addressed the importance of the bond between young children and their mother. In particular, he noticed that L.R. demonstrated “clingy behavior” during both visits with mother and would cry when mother put her down. Bates concluded that it was clear that L.R. was missing a strong bond with mother and needed more contact with her.

Bates concluded that a guardianship was necessary in light of Sam’s special needs and the facts that both parents were early in their recovery and unstable in their life situations. He recommended that great-grandmother be granted the permanent guardianship because she had an adequate home, had a strong desire to make sure the children were safe, had demonstrated the skills needed to manage the children, and had provided care such that the children appeared happy and content in her home.

The Tribal Resolution and Intervention

On May 2, 2011, the Tribe’s council filed its resolution supporting mother’s efforts at reunification with her four children. The Tribe also requested longer visits between mother and the children.

On May 12, 2011, the Tribe intervened.

Addendum to Bates’s Report

Bates filed an amended guardianship report on May 6, 2011, after he learned about the competing guardianship petition of aunt and uncle. In his assessment of this application for a guardianship, Bates noted that aunt is the older sister of mother and also a member of the Tribe. Bates visited the home of aunt and uncle and observed that their home was large, well maintained, and comfortable. He noticed a bond between aunt and uncle and the children.

Bates’s expressed concern that aunt had done nothing for a significant period of time even though she had known there were problems in mother’s home. Aunt had known about the drug use of mother and father, the violence between mother and father, and the missed medical appointments for Sam. Aunt had tried to intervene by taking mother and Sam to doctor appointments, but had not tried to change the situation or stop the dysfunction.

Aunt claimed that great-grandmother was involved with the harvesting and sale of marijuana. Aunt told Bates that mother was now competent and that the children should be returned to mother. Mother was now living with aunt and uncle and Bates believed that aunt and uncle might not set adequate limits and boundaries with mother.

Bates concluded that moving the children and disrupting their lives when they seemed happy in the home of great-grandmother would not benefit the children.

The Dependency Referral and the Continuance of the Probate Guardianship Trial

On May 19, 2011, the probate court applied pursuant to Probate Code section 1513, subdivision (c), to have the social worker at the agency commence proceedings in the juvenile court as the four children were abused or neglected or at risk of abuse or neglect as defined by Welfare and Institutions Code section 300. The application included the allegations in the probate guardianship that mother had left the children at home with an incompetent caretaker, that the older child required special care and attention because he has cerebral palsy and asthma, that on December 9, 2010, the Tribe police and ICWA advocate found marijuana and drug paraphernalia in mother’s residence, that the children were occasionally hungry, that the residence lacked adequate heating, and that mother was facing eviction from her residence.

On June 8, 2011, Bates, according to a declaration filed on July 8, 2011, by mother’s attorney, notified all the parties by e-mail that he had received a voice message from Cynthia E. Silva, the social worker at the agency, regarding the referral pursuant to Probate Code section 1513, subdivision (c). The message indicated that the agency “was not going to open a case, [and] that [the agency was] ‘certainly not yanking those kids out of great-grandmother’s home.’ ”

On June 15, 2011, mother filed an application requesting continuance of the June 16, 2011 trial date due to her grandfather’s pending heart surgery. The probate court granted mother’s request and set the trial date to July 15, 2011.

On July 8, 2011, mother filed a request under Welfare and Institutions Code section 331 in the juvenile court to have it review the investigation by the agency social worker. The juvenile court considered mother’s request at a morning hearing on July 13, 2011. At this hearing, the ICWA representative told the court that the Tribe supported a dependency case being opened to offer both parents reunification services since the parents had made progress.

After hearing argument by mother’s counsel that the social worker’s sole reason for deciding not to file a dependency petition was that the children were safe in great-grandmother’s home, the juvenile court expressed some concern: “And, you know, the statutory framework here is one that in a situation where a referral is made it does seem to favor the handling of matters like this through the juvenile court, through the dependency proceedings, and I kind of have a problem with the idea that the department makes a determination that dependency proceedings aren’t warranted––if that’s what they did and I don’t know that that’s what they did and I’m not actually reaching that issue––if that decision is founded on the theory that the children are now either in a temporary situation or even a temporary guardianship with people other than the parents and are therefore safe and therefore a dependency proceeding is not made.”

The court, however, did not reach the merits of mother’s argument as it found she lacked standing and her request was untimely. The juvenile court explained that only the party who had asked the agency to file dependency proceedings could seek review of the decision not to file a dependency petition. During the hearing, the juvenile court explained that the time had lapsed even for the probate court to request review of the agency social worker’s decision. The statute required a request for review to be filed within 30 days of the referral to the agency. The probate court had made the referral on May 19, 2011, which was more than 30 days prior to the current date of July 13, 2011.

In the afternoon of July 13, 2011, the probate court held a hearing to consider mother’s ex parte request to continue the trial date of the guardianship to July 15, 2011. Mother raised an objection to the juvenile court’s decision that morning not to accept jurisdiction over the matter. After reviewing its file, the probate court noted that the decision by the social worker in response to the application to commence proceedings in the dependency court had been filed. The probate court observed that the agency social worker wrote that she had decided not to commence proceedings in juvenile court because “the children were found to be well cared for in the home of their current guardian . . . .” The probate court told mother that it was not going to review the decision of another judge and would not reconsider the juvenile court’s decision to reject jurisdiction over the matter. The probate court denied mother’s request to continue the guardianship hearing.

Contested Hearing on Petitions for Guardianship and Mother’s Notice of Appeal

The contested hearing on the petitions for guardianship began on July 15, 2011. The parties agreed to accept the following as stipulated testimony: Mother abused drugs while her children were in her custody and through March 2011. This abuse included the intravenous use of methamphetamine, and the use of alcohol and marijuana. Mother and father had a domestically violent relationship and ended their relationship in August 2010. In December 2010, mother left her children at home with an inappropriate caretaker. Mother acknowledged that she and father failed to attend consistently to Sam’s medical needs. Mother agreed that her son had missed excessive days of kindergarten, primarily because of mother’s own depression. Mother had enrolled in Pinoleville Vocational Rehabilitation Program on March 24, 2011, and was tested for drugs. In April, mother tested positive for marijuana; she did not test positive for methamphetamine in any of the tests. On June 24, 2011, mother received a certificate of completion from the substance abuse program, Pinoleville Pomo Nation Wellness Recovery Program (Pinoleville Recovery). Additionally, mother had completed two parenting classes and had called the agency on May 19, 2011, requesting voluntary services. The agency indicated that it was likely that it would provide mother with voluntary services after the birth of her fifth child.

T.R.’s therapist, Melanie Ulvila, testified. Ulvila, a licensed clinical social worker certified in parent-child interaction therapy and positive parenting principles, had been working as a therapist for Consolidated Tribal Health Project since October 2010. The court designated Ulvila as an expert in the area of child therapy and social work without any objection from any party.

Ulvila testified that she had been working with T.R. since April 7, 2011. It was reported to Ulvila that T.R. had exhibited parentified behaviors and Ulvila worked with T.R. on reassuring her that she did not need to worry about caring for her siblings and that the adults in her life would now do that. T.R. told Ulvila that she was living with her great-grandmother because her mother left her alone while she “was out partying.” T.R. expressed concern that her younger siblings were hungry when she was caring for them. In late April or early May, T.R. shut down and stopped being verbal. This coincided with the period when T.R. was visiting her mother more frequently. Ulvila believed that the increased visits with her mother impacted T.R.’s behavior because great-grandmother reported that mother had told T.R. not to talk to her therapist. On May 26, T.R. disclosed to Ulvila that her mother had instructed her not to talk to her therapist. At that same session, T.R. exhibited more aggressive behaviors and threw a toy on the floor, which broke. Ulvila diagnosed T.R. as suffering from Disruptive Behavior Disorder stemming from having lived in a chaotic early environment.

Ulvila believed that T.R. probably had “formed a pretty significant attachment to her great-grandmother.” Ulvila maintained that T.R. needed to continue to live in this environment and she opined that it would be detrimental to her if she were removed from her great-grandmother’s home. When asked whether T.R. should testify, Ulvila stated: “Well, the fact that she won’t meet with me one-to-one in a play session in an office and has shut down, I can’t imagine a five-year-old getting on a stand and talking in front of a group of people. I think that would be traumatizing and really inappropriate.” She elaborated that T.R. would feel a loyalty to her mother and it would be unfair to put her in a situation where she would be asked to answer questions that she might feel “went against” her mother. T.R. told Ulvila that she wanted to live with her great-grandmother.

At the beginning of the hearing, counsel for the minors had moved to prevent T.R. from testifying. Following Ulvila’s testimony, the probate court granted this motion.

Kenneth Wright, the tribal president and council member, testified. He agreed that the use of methamphetamine was not socially or culturally appropriate among members of the Tribe and that the tribal community and the rest of society viewed drug abuse similarly. He was present when the Tribe council wrote the letter in support of reunification services for mother. He said that he supported both mother and great-grandmother as they are both tribal members. He supported reunification services for mother because he did not want to break the family bond. The Tribe wanted the children to be returned to their parent. He clarified that he would not want the children to be returned until the parent had been sober for a substantial period. He then stated that he would be comfortable with returning the child to the parent if the parent had been engaged in services for some months and had a supportive social network.

Great-grandmother testified that Sam was two to three years behind in development when he first came to live with her and she believed that medical neglect was the cause. When the children first came to live with her, T.R. wanted to do everything for her siblings. Great-grandmother stated that both she and father took the children to the doctors and dentists.

Michael Shepard, program manager and substance abuse counselor for Pinoleville Recovery, testified that mother attended the program two days per week. Mother told Shepard that she had a history of using marijuana and methamphetamine. She claimed that she did not have a drug problem but was requesting treatment just to get her children back or to prove to the court that she was clean. Mother underwent approximately 40 drug tests at Pinoleville Recovery, and they were all clean except for two, which were positive for marijuana. There was no testing for alcohol and the tests were not sent to a lab for confirmation. Mother received a certificate of completion for substance abuse treatment on June 24, 2011. She also received certificates for completing two parenting classes.

The parties stipulated that Elizabeth McFadden was an expert on substance abuse treatment. McFadden agreed that mother had done a lot of good work in the past four months. McFadden expressed concern that mother’s drug tests were not random and had not been lab tested.

Over mother’s objection, the court qualified Bates as an expert witness under ICWA. The parties stipulated that he was an expert on custody and visitation.

Bates explained that he had worked for CPS for four years when satisfying the hour requirements for his marriage and family therapist license. Bates stated that his focus when he worked for CPS was working with Native American families and 70 percent of his caseload involved Native American families. As a court evaluator, he had done about 15 to 20 custody or visitation evaluations involving the Tribe.

Bates testified that mother admitted to having a drug problem in the past, and claimed not to have used drugs since May 2010. Bates was asked whether the treatment of two sessions per week for a three- and one-half-month period was sufficient treatment for mother given her admission regarding the use of drugs. He responded, “Generally not.” He opined that the best program, which mother had not completed, was 90 days in residential drug treatment followed by aftercare for about four to eight months.

Bates had observed mother interact with her four children and he believed that mother demonstrated the supervisory skill to take the appropriate protective actions with her children. He, however, expressed concern about mother’s pregnancy, because adding a fifth child would increase the likelihood of her being neglectful with all five children.

Bates’s principal concern related to the care of Sam because mother had missed his medical appointments in the past; he needed medical attention and services on an ongoing basis. Bates also was worried about mother’s ability to get the children to school. He did believe that L.R. and D.R. needed to spend more time with mother, as they were missing mother and were demonstrating separation anxiety. He agreed that the children’s relationship with their mother was a vital component of their future healthy development.

Bates testified that he did not believe the children could be safely returned to mother’s custody at this time. He believed that there was clear and convincing evidence that the continued custody of the children by mother would likely result in either serious emotional or serious physical damage to the children.

Bates also observed father’s care of the four children while they were in great-grandmother’s home. During his first visit at the home, great-grandmother told father what to do and he followed her instructions. Father was the only person caring for the children during Bates’s second visit. Bates expressed surprise at father’s ability to manage all four children at the same time. He did have concerns about father’s ability to care for the children if father were under the influence.

Bates admitted that father had a number of convictions for spousal abuse. Bates also acknowledged that in 2009, father had a conviction for inflicting corporal injury and cruelty to a child. Since 2009, father had three probation violations. Father’s first violation was admitted alcohol abuse and the second was for growing and smoking marijuana. The third violation, which occurred while father was residing in the home of great-grandmother, involved father’s admitting to his probation officer that he consumed a beer. Bates stated that he “absolutely” had concerns about father’s caring for the children as he had a drinking problem.

Bates observed that the four children seemed very comfortable with great-grandmother and followed her directions. T.R. told him that she wanted to remain with great-grandmother and father. He stated that mother’s inappropriate instructions to T.R. that she should not talk to her therapist created confusion for T.R. and could be emotionally difficult for her. He feared that T.R. would again exhibit parentified behavior if she were returned to mother’s care, especially since mother was having another child.

The four children, according to Bates, were comfortable with aunt and uncle. He had no concern regarding their ability to care for the children.

Bates believed that the guardianship should be a minimum of 12 months. If mother were to receive voluntary services from the agency, Bates commented that would not alter his recommendation.

Reuben Becerra, a tribal council member at large and ICWA advocate for the tribal council, qualified as an ICWA expert. The tribal council, according to Becerra, had been monitoring the family since the fall of 2009. The primary concern of the council was the parents’ failure to obtain the necessary medical care for Sam.

Becerra acknowledged that both parent had problems related to drug and alcohol abuse. Nevertheless, the Tribe’s position was that mother had proven that she was clean and sober and the Tribe supported reunification with mother as long as she remained clean and sober. The Tribe believed that custody should be divided equally between mother and father. The Tribe would not support permanent guardianship and would support only a temporary guardianship because it supported reunification with mother.

Uncle testified that he had been married to mother’s sister for 18 years and he was the tribal chairman of the Potter Valley Band of Pomo Indians for the past 10 years. He had never suspected that mother was using drugs. He was surprised that mother had tested positively for marijuana in April 2011, because she had been living in his home at that time. He admitted that he would not be able to recognize whether she was under the influence.

Mother testified and denied advising T.R. not to speak to her therapist. She acknowledged being early in recovery, but expressed pride in where she was and in the fact that she had not missed any drug tests; she had been clean from methamphetamines for almost five months. She admitted that she had been offered voluntary services during February 2009, and that she had declined those services. She also acknowledged that in the past she had not consistently made sure that Sam’s needs were being met. She assured the court that she would do what was needed in the future.

The probate court admitted letters from various people and heard testimony from mother’s friends that validated mother’s interactions with her children. The court also received a letter from a certified substance abuse counselor that mother’s treatment had been sufficient.

After hearing testimony from numerous witnesses, asking some follow-up questions, and taking documents, the court heard argument by mother’s counsel that mother would have preferred the matter to have proceeded as a dependency case. The probate court asked counsel for the minor and for great-grandmother to respond to the issue of whether it should ask the juvenile court “to take one more look at this because” the probate court did “see these parents beginning to make progress.” The probate court added, “And maybe with the support of social services and a supervised dependency case, they might get there.”

Counsel for great-grandmother argued that this process had already lasted seven months––significantly longer than a “normal guardianship proceeding”––and mother had not made the requisite showing. The court responded, “It’s a big if, anyway. All this court could do would be to refer to the juvenile court. The juvenile court could decide on its own and in its own discretion whether it even felt that further review by CPS was appropriate.” Counsel for the minors added that she was “dubious that the juvenile court would be inclined” to accept the probate court’s invitation for review and that the children at this point needed “a little bit of resolution.”

The probate court stated: “The easy case in a guardianship is where there is parental neglect and the issues have not been addressed or remedied by the time the guardianship petition is heard. [¶] This is a tougher case, really, because I see progress being made by both mother and father. It’s like a light bulb came on at some point after the children were removed from their care and the depths of their love and commitment to parenting really came to the forefront and it’s very gratifying to see that.” The court then individually commended each parent regarding his and her progress. The court noted that this was an ICWA case, “which heightens standards for granting custody to a non-parent over parental objection.”

The probate court summarized the testimony and evidence in the case. The court found that detriment had been established by clear and convincing evidence based on the short duration of mother’s sobriety and her risk of relapse if the children were returned to her so early in her recovery. The court also found clear and convincing evidence showed that active efforts had been made to provide services to the parents, but they failed to avail themselves of that support prior to the removal of the children. The court further found that continuing the temporary guardianship was not in the best interest of the children.

The probate court denied the request by aunt and uncle for guardianship and found it detrimental to remove the children from their stable placement with great-grandmother. The court ordered supervised visitation for mother with Sam and T.R. for a minimum of two hours per week in the home of aunt and uncle. It ordered a minimum of four additional hours of supervised visits with the two younger children in the home of aunt and uncle. The court named great-grandmother as the children’s guardian of the person, but denied her request for de facto parent status. The order of guardianship and the letters were filed on August 8, 2011.

The probate court stated that it had set the minimum visitation times for mother and if the parties could not work out the details of visitation, they could come back to the court for a very short hearing to resolve the details. The court added that the court does not review guardianships but the parents could bring a motion to terminate the guardianship. The court added that it believed “this is a case where there’s potential for these parents in the next 12 months to make potentially successful motion to terminate this guardianship.”

The probate court explained that it should be “relieving all the court appointed attorneys because the guardianship case has been resolved.” Counsel for mother stated that she would remain on the case pro bono to work on any issue regarding visitation. The court proceeded to relieve appointed counsel on the case except counsel for the minors.

Mother filed a timely notice of appeal. Mother filed briefs in this court and counsel for great-grandmother and Sam filed separate respondent briefs.

DISCUSSION

I. The Probate Court’s Duty Under Probate Code Section 1513, Subdivision (c),

and Welfare and Institutions Code Section 331

A. The Relevant Law Governing Probate Guardianships[2]

Mother argues that the probate court’s order granting the letters of guardianship must be reversed because the court delayed referring the case to the agency under Probate Code section 1513, subdivision (c) and, once the agency decided not to file a petition pursuant to Welfare and Institutions Code section 300, the probate court under Welfare and Institutions Code section 331 should have requested the dependency court to review the social worker’s decision.

When a relative files a petition for the appointment of a guardian of a minor, a court investigator must investigate and file a report and recommendation with the court, unless waived by the court. (Prob. Code, § 1513, subd. (a).)[3] Here, the court did appoint Bates as the court investigator and he did file a report indicating that mother and father had substance abuse problems. Bates recommended a permanent guardianship with great-grandmother.

When there are allegations of parental neglect, as in the present case, the probate court has a duty under Probate Code section 1513, subdivision (c) to refer the case to the social services agency for determination of whether a dependency petition pursuant to Welfare and Institutions Code section 300 should filed. (See Guardianship of Christian G. (2011) 195 Cal.App.4th 581, 603-604 (Christian) [referral to social services agency for dependency investigation applies to any parent whose child allegedly falls within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300]; but see also, Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1534-1536 [referral to social services agency for a dependency investigation is not necessary when the probate guardianship is established pursuant to a stipulation after mediation].)

Welfare and Institutions Code section 329 requires the social worker to investigate immediately the referral as the social workers deems necessary to determine whether proceedings in the juvenile court should be commenced. If the social worker does not file a petition in the juvenile court within three weeks after the application, the social worker shall immediately inform the applicant of the decision and reasons not to proceed further. (Welf. & Inst. Code, § 329.)

“When any person has applied to the social worker, pursuant to [Welfare and Institutions Code section] 329, to commence juvenile court proceedings and the social worker fails to file a petition within three weeks after the application, the person may, within one month after making the application, apply to the juvenile court to review the decision of the social worker, and the court may either affirm the decision of the social worker or order him or her to commence juvenile court proceedings.” (Welf. & Inst. Code, § 331.) “In cases such as this one, where there is not a private party seeking review of the social worker’s decision under [Welfare and Institutions Code] section 329, the probate court is by implication the person who has applied to the social worker to commence juvenile court proceedings.” (In re Kaylee H. (2012) 205 Cal.App.4th 92, 104, fn. 9.)

When a juvenile court does not take jurisdiction over the matter, a probate court may appoint a guardian for a minor “if it appears necessary or convenient.” (Prob. Code, § 1514, subd. (a).) Under Probate Code section 1510, subdivision (a), a court may grant custody to a nonparent over a parent’s objection only if it finds “ ‘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.)” (Adoption of Daniele G. (2001) 87 Cal.App.4th 1392, 1401.) While the child’s health, safety, and welfare, and any history of abuse or substance abuse by a parent are relevant (Fam. Code, § 3011), “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.” (Guardianship of Ann. S. (2009) 45 Cal.4th 1110, 1123.)

If it is not in the child’s best interest to remain in a parent’s custody, the preference is for custody with “the person or persons in whose home the child has been living in a wholesome and stable environment.” (Fam. Code, § 3040, subd. (a)(2).) The parent’s rights over the child are suspended for the duration of the probate guardianship. (Fam. Code, § 7505, subd. (a); Guardianship of Ann S., supra, 45 Cal.4that p. 1124.) However, the court retains discretion to grant visitation, and may terminate the guardianship on a petition by the guardian, a parent, or the child, based on the child’s best interest. (Guardianship of Ann S, at pp. 1123-1124.)

B. Standard of Review

Welfare and Institutions Code section 331 provides that application by a person (here, the probate court judge) to the social worker to initiate juvenile court proceedings “may” seek juvenile court review of an agency’s decision not to do so. The auxiliary verb “may” in the statutory language vests the trial court with discretion. Thus, we review this decision under the abuse of discretion standard.

“The test for abuse of discretion is whether the trial court exceeded the bounds of reason.” (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363.) “This description of the standard is complete, however, only if ‘beyond the bounds of reason’ is understood as something in addition to simply ‘irrational’ or ‘illogical.’ While an irrational decision would usually constitute an abuse of discretion, the legal standard of review encompasses more than that: ‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action . . . .” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ [Citation.] For example, a court could be mistaken about the scope of its discretion and the mistake could be entirely ‘reasonable’––that is, it adopts a position about which reasonable judges could differ. But a reasoned decision based on the reasonable view of the scope of discretion is still an abuse of judicial discretion when it starts from a mistaken premise, even though nothing about the exercise of discretion is, in ordinary-language use of the phrase, ‘beyond the bounds of reason.’ [Citation.] In other words, judicial discretion must be measured against the general rules of law and, in the case of a statutory grant of discretion, against the specific law that grants the discretion. [Citations.]” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393-394.)

C. No Abuse of Discretion

Mother complains that the probate court exceeded its authority and abused its discretion when it ordered a guardianship. (See In re Andres G. (1998) 64 Cal.App.4th 476, 483 [no waiver when juvenile court acted in excess of jurisdiction because the code did not authorize the order and the order contravened the state’s comprehensive statutory scheme]; In re Jack C. (2011) 192 Cal.App.4th 967, 987 [court acted in excess of its jurisdiction when it terminated parental rights without holding an evidentiary hearing to establish good cause not to transfer jurisdiction to the Indian tribe].) She maintains that the probate court “circumvented the dependency scheme” by not asking the dependency court to review the agency social worker’s decision not to file a petition pursuant to Welfare and Institutions Code section 300. She claims that the court’s failure to refer the matter to the dependency court violated her constitutional due process rights. As we discuss below, mother is attempting to create a duty that is not prescribed by statute or case law.

Mother contends that this is a case of first impression; we disagree. The law is clear that the probate court has a duty under Probate Code section 1513, subdivision (c) to refer this matter when there are allegations of parental neglect or abuse to the social welfare agency to determine whether a petition pursuant to Welfare and Institutions Code section 300 needs to be filed. Here, the probate court followed the mandates of the law and referred the matter to the agency social worker. The social worker determined that a petition pursuant to Welfare and Institutions Code section 300 did not need to be filed in the juvenile dependency court.

Under Welfare and Institutions Code section 331, the probate court has the discretion to ask the juvenile court to review the social worker’s decision. When any person applies to the social worker “to commence juvenile court proceedings and the social worker fails to file a petition within three weeks after the application, the person may, within one month after making the application, apply to the juvenile court to review the decision of the social worker . . . .” (Welf. & Inst. Code, § 331, italics added.)

Mother asserts that the use of the word “may” in Welfare and Institutions Code, section 331, does not give the probate court discretion to decide whether to seek review by the juvenile court. She asserts that this word merely indicates that “the need for engaging in” dependency proceedings may not arise in all cases. She maintains that under Christian, supra, 195 Cal.App.4th 581, the probate court was required to exercise its discretion under section 331 of the Welfare and Institutions Code because she contested the guardianship and there were allegations of parental abuse and neglect. Thus, she urges us to construct the statute to require the probate court to ask the juvenile court to review the decision by the social service agency not to file a dependency petition whenever a parent contests the guardianship and the pleadings or investigator’s report contain allegations of parental neglect or abuse.[4]

Mother’s argument lacks merit. In Christian, supra, 195 Cal.App.4th 581,we reversed the guardianship order when the lower court had failed to refer the matter to a child welfare agency despite allegations of parental unfitness. (Id. at p. 596.) We held that once the probate court “received information constituting an allegation of [parental] unfitness, whether from the investigator’s report or from the pleadings themselves,” the court was “obligated to order the case referred to” the county agency designated to investigate potential dependencies. (Id. at p. 604.)

It is indisputable that there are significant differences between probate proceedings and dependency proceedings. The dependency process focuses on the maintenance or reunification of the family “to the fullest extent possible without jeopardizing the child’s physical or emotional safety.” (Christian, supra, 195 Cal.App.4th at p. 598, fn. omitted.) “This preference for family continuity and reunification is absent in the context of a guardianship proceeding.” (Id. at p. 599) Thus, a referral to the child welfare agency is always required when a parent is accused of unfitness as defined by Welfare and Institutions Code section 300. (Christian, at p. 602.)

Christian, supra, 195 Cal.App.4th 581mandates a referral to “the county’s dependency agency for investigation,” and does not suggest, as mother argues, that the court has the additional duty of requesting review of the agency’s decision by the juvenile court when the agency decides not to file a dependency petition. (Id. at p. 605.) Once that referral is made, the probate court has satisfied its duty. Here, in contrast, to the situation in Christian, the probate court made the proper referral.

The fact that there are significant differences between a dependency court and a probate guardianship does not mean that the matter can never proceed in the probate court when there are allegations of parental abuse and neglect and the parent opposes the guardianship. Indeed, such a holding would be contrary to the plain language of Welfare and Institutions Code section 331. As already stressed, the plain language of section 331 of the Welfare and Institutions Code section is that the party applying to the social worker to initiate juvenile court proceedings “may” seek juvenile court review of an agency’s decision not to do so. The language does not suggest that there are any situations that divest the applicant of that discretion or that there are particular situations where the applicant must seek juvenile court review. Mother is attempting to rewrite the statute to impose a sua sponte duty on the probate court to request review by the juvenile court within the time prescribed by Welfare and Institutions Code section 331. Mother’s construction of the statute is contrary to the express language of the statute. We will not rewrite the statute in this manner.

Mother also seems to suggest that the probate court’s duty to ask the juvenile court to review the matter was triggered because the investigation by the agency social worker was, according to mother, inadequate. She claims the social worker submitted an untimely “sham report.” Mother argues that the record shows that the children were at risk of abuse or neglect under Welfare and Institutions Code section 300, subdivision (b), and the social worker’s basis for deciding not to file a petition was clearly improper.

Mother cannot now complain about any alleged defects in the agency social worker’s report. The statute does not require the social worker to provide the court with a written report. (See Guardianship of H.C. (2011) 198 Cal.App.4th 1235, 1248.) The record must demonstrate that the social worker conducted the required investigation. (Ibid.) Here, the social worker did conduct an investigation, and mother never made a timely challenge to the adequacy of this investigation.

The probate court’s sole obligation was to request an investigation and Welfare and Institutions Code section 329 provides that the social worker “shall immediately investigate as he or she deems necessary to determine whether proceedings in the juvenile court should be commenced.” The probate court, similarly to the juvenile court that reviews a social worker’s decision not to file a dependency petition, “should also give due consideration to the social worker’s determination and may properly rely upon the agency’s expertise for guidance.” (In re M.C. (2011) 199 Cal.App.4th 784, 814.)

On June 8, 2011, Bates informed mother’s counsel that the social worker “was not going to open a case, [and] that [the agency was] ‘certainly not yanking those kids out of great-grandmother’s home.’ ” One week later, on June 15, 2011, mother requested a continuance of the trial date due to her grandfather’s pending heart surgery. Mother did not raise any challenge to the decision of the social worker not to file a petition pursuant to Welfare and Institutions Code section 300.

The probate court made the referral to the agency pursuant to Probate Code section 1513, subdivision (c), on May 19, 2011. Under Welfare and Institutions Code section 331, if the social worker does not to file a petition in the dependency court within three weeks after the application, review by the juvenile court must be requested “within one month after making the application[.]” (Welf. & Inst. Code, § 331.) Thus, the time for the probate court to request a review of the social worker’s decision expired on June 19, 2011. Yet, mother did not raise the issue in the probate court until July 2011, which was beyond the time to ask the juvenile court to review the social worker’s decision. Mother cannot now, belatedly, challenge the grounds for the social worker’s decision or the adequacy of the social worker’s investigation when she never voiced a timely objection in the probate court.

The probate court stated that Welfare and Institutions Code section 331 provides that the applicant has the right to ask the juvenile court to review the decision of the social worker. Thus, there is nothing in this record that establishes that the court did not understand that it had the discretion to ask for review by the juvenile court under the relevant statute. The probate court simply exercised its discretion not to ask for review and mother never made a timely challenge to this decision.

Mother also complains about the probate court’s delay in referring the matter to the agency. The temporary guardianship was granted on December 21, 2010, but the court did not refer the matter to the agency until May 2011. She contends that she should have received the services mandated under ICWA earlier.

Mother ignores that the probate court’s delay in referring the matter to the agency did not result in prejudice to her. The cause of any delay in her receiving services was because she initially declined services. The children were removed in December 2010 and mother signed a safety plan in December 2010 with the ICWA director stating that she would attend two meetings a month at Yuki Trails and that she would do random drug testing. Although she signed this safety plan and the services were offered to her, she chose not to participate in them. Subsequently, in March 2011, she was offered the 90-day Pinoleville Recovery program for substance abuse treatment, drug testing, and parenting classes, which she accepted. Thus, she was offered services immediately as mandated by ICWA and she actually received services prior to the probate court’s re