Opinion
F087491
07-05-2024
In re COLLIN H. et al., Minors. v. A.C. et al., Objectors and Respondents ADAM C. et al., Petitioners and Appellants,
John L. Dodd & Associates and John L. Dodd for Petitioners and Appellants. Beth A. Sears, under appointment by the Court of Appeal, for Objector and Respondent A.C. Jack A. Love, under appointment by the Court of Appeal, for Objector and Respondent C.H.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BAT-21-003070 Dawn Bittleston, Judge.
John L. Dodd & Associates and John L. Dodd for Petitioners and Appellants.
Beth A. Sears, under appointment by the Court of Appeal, for Objector and Respondent A.C. Jack A. Love, under appointment by the Court of Appeal, for Objector and Respondent C.H.
OPINION
DETJEN, J.
Appellants Adam C. and Melissa C. (collectively, appellants), the uncle, aunt, and legal guardians of the children Collin H. and Hadley H. (collectively, children), appeal the trial court's denial of their petition to terminate parental rights under Probate Code section 1516.5 and Family Code section 7822. Respondents, A.C., (Mother) and C.H. (Father) (collectively, parents), are the parents of 10-year-old Collin and seven-year-old Hadley. Appellants contend the trial court erred by failing to grant their petition to terminate parental rights. As we explain below, we reverse the order denying appellants' petition and remand the matter with directions that the court conduct a new evidentiary hearing on their petition.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
The Petition for Guardianship
Appellants filed a petition for appointment as guardians of children on June 10, 2019 (hereafter "guardianship petition"). According to the guardianship petition, a guardianship was necessary because Mother and Father were abusing drugs. The guardianship petition also alleged that Mother was having frequent rage episodes, which put children at risk of harm. A petition for appointment of temporary guardianship of the person was also filed with the guardianship petition.
A copy of the guardianship petition was included as an exhibit to Father's trial brief for the termination hearing.
A copy of the petition for temporary guardianship was not filed in the record for the termination hearing.
On June 4, 2019, Father dropped children off at the maternal grandfather's home because Mother was breaking items in the home and scaring children. Father expressed his fear for children, but he refused to call law enforcement. The maternal grandfather contacted the child welfare agency, and he was advised to keep children safe.
Law enforcement was contacted by appellants on June 7, 2019, after Mother arrived at their home to take children. Appellants believed Mother was under the influence of drugs at the time. Adam, Mother's brother, indicated that Father gave appellants permission to take care of children two days earlier. Parents were reportedly experiencing relationship problems because they both recently started using methamphetamines. Appellants were in the process of filing for a temporary guardianship of children.
A report from the Bakersfield Police Department in relation to that contact was attached to the guardianship petition.
Police officers responded to Mother's home to determine if it was fit for children. The home was observed to be cluttered, and the officers had difficulty walking through the bedrooms of the home. There was an adequate amount of food in the home. Father told one of the officers that he was in agreement with children being at appellants' home. He described his relationship with Mother as "very argumentative," and he preferred that children were not in the home when" 'things get heated.'" Father indicated that he would pick up children from appellants' home on a later date. A social worker from the child welfare agency told an officer that she would make a home visit at Mother's residence in a few days.
The Child Information Attachment (form GC-210(CA)) indicated that appellants did not know or have reason to know that children were Indian children. Appellants also stated that they had no knowledge of any Indian ancestry in children's family. Children's maternal ancestry was described as Italian, and the paternal family was identified as Spanish. The addresses for children's paternal relatives were listed as unknown.
The guardianship petition requested that the probate court excuse appellants from giving notice to the paternal relatives due to their unknown whereabouts. On June 10, 2019, the probate court found that the paternal relatives could not be given notice with reasonable diligence, and it dispensed with notice for the paternal relatives for the guardianship petition. The probate court also found that giving notice of the petition for temporary guardianship to Mother and Father was contrary to the interest of justice.
The Probate Division of the Kern County Superior Court where the guardianship petition was filed will be referred to as the "probate court."
Copies of various notices and orders related to the guardianship proceedings were attached to Mother's trial brief for the termination hearing.
On June 17, 2019, appellants, Mother, and Father were all present for an ex parte hearing regarding the petition for temporary guardianship. There was no court reporter present for the hearing, and no parties were represented by counsel. Mother and Father objected to the guardianship petition, and the parties were referred to mediation. The mediation agreement was incorporated into the order of the probate court. The probate court continued the hearing to be heard concurrently with the guardianship petition based upon the agreement of the parties. Appellants were given primary care, custody, and control of children, and parents were to be provided visitation at appellants' home. The parties agreed to return to probate court on July 15, 2019, for a combined hearing on the guardianship petition and petition for temporary guardianship.
Mother, Father, and appellants were present for the July 15, 2019 hearing, which was not reported. The parties continued to proceed without counsel, and a law library handout was provided to all parties. Mother objected to both the guardianship petition and petition for temporary guardianship, and any objections were to be filed by August 12, 2019. Parents were advised that a failure to file timely objections pursuant to rule 7.801 of the California Rules of Court could result in a waiver. Further mediation was declined, and a court trial on the petition for temporary guardianship was set for August 22, 2019. The hearing on the guardianship petition was trailed to the date of the court trial.
All further rule references are to the California Rules of Court.
On August 22, 2019, Mother, Father, and appellants were present. The hearing was not reported. The probate court noted that the guardianship petition and petition for temporary guardianship were ready for hearing, and parents did not file objections as previously ordered. Parents' objections were stricken due to their failure to comply with rule 7.801. Both parents failed to provide an adequate explanation for their failure to provide objections in probate court.
The probate court found the guardianship to be necessary and convenient, and it granted the guardianship petition. Appellants were provided sole care, custody, and control of children pursuant to the guardianship appointment. The petition for temporary guardianship was deemed moot. The probate court found ICWA (Indian Child Welfare Act) was not applicable. The parties were referred to mediation for visitation, and Mother indicated she had not read the mediation agreement when the parties returned from mediation. The matter was trailed to allow Mother to read the agreement, and all parties were ordered to return 90 minutes later. Parents did not return to the probate court, and no mediation agreement was reached. All visitation between children and parents were to be at the sole discretion of appellants until further order of the probate court.
The Petition To Terminate Parental Rights
On October 12, 2021, appellants filed a petition to terminate the parental rights of Mother and Father pursuant to Probate Code section 1516.5 and Family Code section 7822 (hereafter "termination petition"). The termination petition alleged that both parents left children in appellants' care and custody without any meaningful communication for a period in excess of six months. The termination petition further alleged that children had been in appellants' physical custody since June 4, 2019, and appellants had legal custody of children pursuant to letters of guardianship that were issued on August 27, 2019. Appellants asserted that neither parent had legal custody of children within the last two years.
The Family Law Division of the Kern County Superior Court where the termination petition was filed will be referred to as the "trial court."
The Indian Child Inquiry Attachment forms (ICWA-010(A)) attached to the termination petition indicated that Adam had no knowledge that children might be Indian children. Adam also completed a Parental Notification of Indian Status form (ICWA-020), which indicated no circumstances were applicable to suggest children were Indian children. On November 13, 2021, both parents were served with a citation to appear for the termination proceedings.
On January 3, 2022, a court investigator filed a report recommending that the termination petition be granted. According to the report, Collin, at seven years of age, was doing well in school and in good health. Hadley, at four years of age, had some behavioral issues, but she was working with a therapist to exhibit more self-control. Melissa stated that Collin did not want to visit his parents, but he missed them. Children were excited about being adopted, but they were too young to fully understand the termination of parental rights.
Appellants claimed that Mother and Father had an extensive history of drug abuse, but parents were able to maintain their sobriety for approximately 13 years. Parents were reportedly unable to remain sober since relapsing in 2019. Children's older brother was living in a legal guardianship with a relative, and that same relative recently adopted children's one-year-old sister.
The initial visit between children and their parents during the guardianship went well. After the first visit, parents showed up unannounced to appellants' home and attempted to take children. Melissa stated Mother physically attacked her, and Adam had to intervene. Appellants required parents to drug test and demonstrate sobriety for a period before agreeing to subsequent visits. Melissa claimed that neither parent had pursued visitation with children. Parents did not respond to the investigator's attempts to interview them for the report.
At the initial hearing on the termination petition held on January 7, 2022, Mother, Father, and appellants were present. Counsel for appellants was present, and the trial court appointed counsel for parents. Mother denied having any Indian ancestry, and Father claimed "Paiute" ancestry. A readiness hearing was set for March 25, 2022, and Father was to provide information regarding his potential Indian ancestry to his counsel before the next hearing. At the readiness hearing, Father's counsel indicated that Father was also claiming Cherokee ancestry, and Father had potential membership in the nonfederally recognized tribe, Kern Valley Indian Community.
Appellants' counsel submitted a declaration setting forth the inquiry into Father's claim of potential Indian ancestry. A child welfare social worker assigned to the adoption case of children's younger sister sent formal notice to the 19 Paiute tribes, three Cherokee tribes, Bureau of Indian Affairs, and Department of Interior. None of the tribes responded to indicate that children were Indian children. In July 2022, appellants served an additional formal notice on the 19 Paiute tribes, three Cherokee tribes, Bureau of Indian Affairs, Department of Interior, and the Kern Valley Indian Community. The additional notice was sent based upon Father providing additional information since the initial notice, and none of the tribes responded that children were Indian children.
After multiple continuances to address new information from Father regarding his potential Indian ancestry, the trial court found that appellants complied with ICWA absent any objection from the parties. Appellants' counsel inquired if the trial court was finding that ICWA did not apply, and the trial court responded, "Well, I'm finding that you've complied to date. There is always a chance that somebody is going [to] raise something in the future. So I can't - but at this time I'm finding that you comply with ICWA." The parties agreed that the matter was ready to proceed to trial, and a court trial was set for March 10, 2023.
On March 3, 2023, appellants filed a request for judicial notice of the complete file in the guardianship matter. Attached to the request were the Letters of Guardianship filed on August 27, 2019, and the minute order from the August 22, 2019 hearing where the guardianship petition was granted. Father's second request for a bonding study resulted in a continuance of the court trial to May 26, 2023. At the continued hearing, Father's counsel advised that he filed a motion to set aside in the guardianship matter based upon "an ICWA issue." The hearing was continued to July 28, 2023, due to the pending bonding study and motion to set aside in the guardianship matter.
Appellants' counsel opposed Father's motion to set aside the 2019 guardianship order in the probate court. A declaration was filed in the guardianship matter, which set forth the ICWA inquiry and notice that was completed in the termination matter. On July 28, 2023, the trial court confirmed receipt of the bonding study, and Father's counsel informed the trial court that he intended to file an additional motion to set aside the guardianship petition based on extrinsic fraud. A court trial was set for October 27, 2023.
On October 6, 2023, Father's counsel indicated that the probate court ruled that "ICWA issues are to be raised in the abandonment proceedings." Both Mother's and Father's counsel began to assert that the termination matter could be dismissed based upon a failure to comply with ICWA and extrinsic fraud in the underlying guardianship. The trial court stated, "Under Probate Code [section] 1516.5, you have to show that there's an existing guardianship and it's a valid guardianship. So the issue of whether or not the guardianship is valid and issues regarding the guardianship would be an issue for trial." The parties were requested to submit briefs on "the issue of the validity of the guardianship ...." The court trial was reset for December 13, 2023.
Father's trial brief, filed on October 31, 2023, set forth three separate contentions: (1) "The [guardianship petition] was granted without ICWA inquiry and the court exceeded its jurisdiction without a valid inquiry on the record"; (2) "[Appellants] committed extrinsic fraud upon the court in obtaining an order dispensing with notice to the entire paternal family, including grandparents, aunts and uncles, and half siblings, and stating their whereabouts were unknown"; and (3) "[Appellants] frustrated contact between the biological father and the children."
Mother's trial brief, filed on November 1, 2023, argued that Mother and Father continued to have legal custody of children because appellants' guardianship of children was "void and invalid." She adopted the arguments from Father's brief regarding lack of a documented ICWA inquiry and extrinsic fraud. Mother also asserted that the probate court lacked jurisdiction to order parents to file objections at the July 15, 2019 hearing. Her final contention was that the granting of the guardianship petition on August 22, 2019, violated parents' right to due process. Appellants opposed each of the arguments set forth by Mother and Father.
A contested hearing on the termination petition began on December 14, 2023. Mother, Father, and appellants were present and represented by counsel. The trial court accepted a stipulation by the parties to take judicial notice of all documents in the guardianship matter. The trial court indicated that it would begin with the issue of whether "the granting of the guardianship was valid due to the Indian Child Welfare Act ...." It went on to discuss the issue as follows:
Appellants' request for judicial notice did not include all documents filed in the guardianship matter as noted by Father's counsel.
"As to the Indian Child Welfare Act, the Court is focusing on whether or not the [appellants] made inquiry notice as required under the Rule of Court and whether or not the Court made inquiry of the parties at the time in which they appeared at the first proceeding in the probate matter. [¶] There is no transcript of the court proceeding. The only thing indicated in the record, as identified by all counsel in this case, was that ICWA does not apply; however, it is absent any inquiry statements whether the Court or the [appellants] in the guardianship made an active inquiry. So as to that matter, that's what the Court is focusing on. [¶] We'll start our testimony and argument as it relates to the inquiry, and we'll do the testimony for that, the Court will make a determination, and then we'll go to the next step. Okay? [¶] And the burden does fall on [appellants]; so [appellants' counsel], you'll be the first to present."
Appellants' counsel suggested that parents should present the evidence to support their motion on the ICWA issue to begin the hearing. The trial court responded by stating, "[appellants] have an affirmative and continuing duty to inquire and must state that in their paperwork to the court, to the-in the guardianship proceeding, and I do have the guardianship information of notification. In there they say some information, but your clients need to testify what efforts that they made as to the inquiry when they filed their paperwork in the guardianship that there was no known ancestry; so [appellants] do have a burden as to whether or not they properly complied with the California Rules of Court as it relates to ICWA; so the [appellants] will be going first."
Melissa testified that herself and Adam completed the paperwork for the guardianship petition without an attorney. She recalled that the probate court inquired of parents regarding potential Indian ancestry at one of the hearings on the guardianship petition. Melissa testified that parents denied having any Indian ancestry during the inquiry. She also testified that the paternal grandmother was present for the August 22, 2019 hearing on the guardianship petition. Melissa claimed that she did not have contact information for any of children's paternal family members.
Mother testified that she was present at each of the hearings on the guardianship petition, and she did not recall an inquiry from the probate court regarding her potential Indian ancestry at any of the hearings. Father testified that he could not recall any inquiry regarding Indian ancestry at the initial hearing on the guardianship petition. He also testified that there was no inquiry at the other hearings. Father claimed that he had Indian ancestry, and he did not recall seeing any forms about Indian ancestry in the paperwork he was served for the guardianship petition.
As a rebuttal witness, Melissa testified that Father was served with ICWA forms as part of the paperwork for the guardianship petition. Melissa testified that appellants mailed the documents for the guardianship petition to parents prior to the July 15, 2019 hearing. She recalled Mother showing her the guardianship paperwork in the court hallway on the date of the July 15, 2019 hearing. Appellants had difficulty serving parents with the guardianship petition. The sheriff's department attempted service immediately after the July 15, 2019 hearing, but no contact could be made with parents.
Appellants paid someone to wait outside of parents' house for another unsuccessful attempt at service in late July 2019. Parents were personally served with the guardianship petition and accompanying paperwork on August 1, 2019.
After hearing testimony on the issue, the trial court found that the ICWA inquiry was not properly made as required under rule 7.1015(d) due to appellants' failure to make attempts to obtain information about the ancestry of children's paternal family. The trial court continued its ruling as follows:
"In addition, none of the minute orders reflect that the courts- because the courts also have a duty to inquire-made an inquiry into the Native American ancestry, and it should also be noted that the parents were not even served with the paperwork, at least from the Court documents, with any of the paperwork, the ex-parte paperwork, the petition for appointment of guardianship, and the four-there was one, two, three, four Paternal Notifications of Indian Status ICWA 020 forms filed with the court. [¶] So as such, the compliance with the Indian Child Welfare Act did not occur in the guardianship petition, and as such, an action under Probate Code Section 1516.5 is not actionable to terminate the parental rights of the parties in this case."
After a brief recess, the trial court concluded: "[a]s to the request to terminate parental rights under Probate Code [section] 1516.[5], the Court denies that request, does not find that the violation of ICWA was harmless error. [¶] In addition, there's multiple other defects as noted by [Father's counsel] and reflected in the briefs relating to the actual hearing on the petition for appointment of guardian."
The trial court proceeded to allow appellants to present testimony regarding the request to terminate parental rights pursuant to Family Code section 7822. Melissa testified that Father agreed to allow children to live in her home on June 7, 2019. Aside from the visit arranged for the recent bonding study, parents' only three visits with children occurred in June 2019. Melissa testified that parents always had a way to contact appellants, and parents knew where appellants lived. She acknowledged that Father contacted her "once or twice" regarding children since June 2019. Melissa did not recall any text messages from Father in 2020 or 2021. Father requested to visit children through a video call in 2019, but appellants declined the video visit. Appellants advised Father to petition for visits in probate court.
The spouse of Father's half-brother, testified that she previously babysat children while parents had custody. In 2019, Mother informed her that Father was starting to use methamphetamine, and Mother admitted to a past drug problem.
Children's maternal grandfather, testified about the incident that resulted in Father leaving children in his care. The maternal grandfather informed Father that children were no longer in his care when Father called six hours later to inquire about retrieving children. The maternal grandmother also testified about Father dropping children off at the grandparents' home.
Adam testified that he believed Father consented to children staying in appellants' home on June 4, 2019. During parents' last visit on June 28, 2019, Mother became upset and wanted children to go home with her. Adam admitted to denying parents' request for a visit on July 1, 2019, and July 3, 2019. Appellants believed that they had the discretion to require drug tests from parents prior to visits. Adam testified that he would have allowed visits if parents provided a clean drug test, but parents never provided a drug test with clean results. Parents were denied visits on several occasions in November 2019 and December 2019, and Adam suggested that parents petition for visits in probate court.
Father testified in opposition to the termination petition. He testified that he took children to the maternal grandparents' home during a "bad argument" between himself and Mother on June 4, 2019. Father claimed that he told the maternal grandfather that he would be back after Mother calmed down. He was informed that children were no longer at the maternal grandparents' home when he called later on that day. Adam told parents that they were no longer welcome at their home after the incident between Mother and Melissa during a visit in June 2019.
Father testified that he attempted to contact Adam to see children on holidays and birthdays. His requests to visit with children through video calls were not responded to, and he sent text messages to Adam in an attempt to request visits. He did not petition the probate court for visits because the court was closed due to the COVID-19 pandemic in March 2020. Father denied that he agreed to allow children to stay at appellants' home.
Mother testified that she went to retrieve children from the home of her other brother on June 6, 2019. She left the home when she was told that law enforcement would be contacted. Mother denied that she consented to appellants having custody of children.
After hearing argument from counsel, the trial court found that children were not left in the care and custody of appellants, and it further found that appellants prohibited contact between parents and children. The trial court concluded that appellants had not met their burden that parents intended to abandon children, and the petition to terminate parental rights pursuant to Family Code section 7822 was denied.
DISCUSSION
I. Probate Code Section 1516.5
Appellants contend the trial court erred when it determined that parental rights could not be terminated pursuant to Probate Code section 1516.5 due to purported procedural defects in the underlying guardianship proceeding.
A. Legal Principles
A probate guardianship is a private custody arrangement, approved but not supervised by the court; it is distinct from a guardianship ordered as a result of juvenile dependency proceedings. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1133 (Ann S.).) Probate guardianships provide an alternative placement for children who cannot safely remain with their parents. (Id. at p. 1122.) "It is the family members and the guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited, or the guardianship continued, or an adoption sought under [Probate Code] section 1516.5." (Ibid.)
When the court appoints a guardian, the parent's authority ceases. (Ann S., supra, 45 Cal.4th at p. 1123.) While the court has discretion to grant visitation, parental rights otherwise are completely suspended for the duration of the probate guardianship and the guardian assumes the care, custody, and control of the child. (Id. at pp. 1123-1124.) "Unless ended by court order, the guardianship continues until the child [either] 'attains majority or dies.'" (Id. at p. 1124.) "The court may terminate the guardianship on a petition by the guardian, a parent, or the child, based on the child's best interest." (Ibid.)
A proceeding under Probate Code section 1516.5 may be brought when all the following requirements are satisfied: "(1) One or both parents do not have the legal custody of the child. [¶] (2) The child has been in the physical custody of the guardian for a period of not less than two years. [¶] (3) The court finds that the child would benefit from being adopted by his or her guardian...." (Prob. Code, § 1516.5, subd. (a)(1)-(3).) The guardian bears the burden of making the requisite showings under Probate Code section 1516.5 by clear and convincing evidence. (See Ann S., supra, 45 Cal.4th at p. 1127.)
B. Standard of Review
"[T]he decision to terminate parental rights lies in the first instance within the discretion of the trial court, 'and will not be disturbed on appeal absent an abuse of that discretion.'" (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382.)"' "The abuse of discretion standard . . . measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria."' [Citation.] The scope of the trial court's discretion is limited by law governing the subject of the action taken. [Citation.] An action that transgresses the bounds of the applicable legal principles is deemed an abuse of discretion. [Citation.] In applying the abuse of discretion standard, we determine whether the trial court's factual findings are supported by substantial evidence and independently review its legal conclusions." (In re Marriage of Drake (2015) 241 Cal.App.4th 934, 939-940.)
"Accordingly, we look to see whether the court abused its discretion in applying the law ...." (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1542.) An abuse of discretion may be found where the court misapplies the law, bases its decision on improper criteria or uses an incorrect legal standard. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436; F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) Where the trial court applies an incorrect legal standard, we review the matter de novo. (See Adoption of A.B. (2016) 2 Cal.App.5th 912, 922.)
C. Analysis
Appellants argue the court lacked jurisdiction to render a ruling that the guardianship order was invalid, and they also assert parents were precluded from challenging an order that was final and appealable.
Challenges to void orders, as distinguished from voidable orders, can be made at any time. (Adoption of Myah M., supra, 201 Cal.App.4th at p. 1531.) A judgment or order is void when there is an absence of fundamental jurisdiction. "A court lacks jurisdiction in a fundamental sense when it has no authority at all over the subject matter or the parties, or when it lacks any power to hear or determine the case." (People v. (2015) 61 Cal.4th 282, 286.) Subject matter jurisdiction is conferred by constitutional or statutory law. (Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 701.) A lack of subject matter jurisdiction means the entire absence of power to hear or determine a case. (Ibid.)
The probate court had subject matter jurisdiction over appellants' 2019 guardianship petition pursuant to Probate Code section 1514, subdivision (a), and both parents were personally served with the guardianship petition on August 1, 2019. Parents appeared in the action on three separate occasions, including at the hearing on August 22, 2019. (See Prob. Code, § 1511, subd. (b) [notice of hearing on petition for appointment of guardian may be served in manner provided by Code Civ. Proc., § 415.10]; see also Code Civ. Proc., § 415.10 [summons may be served by personal delivery]; see generally ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 210 [party submits to court's jurisdiction by making a general appearance in the action and thereby waives defense of lack of personal jurisdiction].) Thus, the probate court's August 2019 guardianship order is not void for lack of fundamental jurisdiction. (See Adoption of Myah M., supra, 201 Cal.App.4th at p. 1531.)
Any other challenge to the guardianship order that parents raised in the present case relates only to acts the trial court allegedly performed in excess of its jurisdiction. This type of challenge does not relate to the probate court's fundamental jurisdiction and is waivable if not timely asserted. (People v. Ford, supra, 61 Cal.4th at p. 287 [an ordinary act in excess of jurisdiction does not negate a court's fundamental jurisdiction to hear the matter, and the ruling is treated as valid until it is set aside; a party may be precluded from seeking to set aside such a ruling because of, among other things, the passage of time]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409-1410 [" 'There is a wide difference between a want of jurisdiction, in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial court is not void, although it may be subject to direct attack on appeal.' "].)
In the present case, the trial court had no jurisdiction to reach claims of error that did not relate to the probate court's fundamental jurisdiction to issue the August 2019 guardianship order. (See Adoption of Myah M., supra, 201 Cal.App.4th at p. 1531 ["A claim that does not concern the trial court's fundamental subject matter jurisdiction is waived if not timely asserted."]; see also Prob. Code, § 1301, subd. (a) [order granting guardianship is final and appealable].) A notice of appeal must ordinarily be filed 60 days after the date of service of a notice of entry of judgment or 180 days after entry of judgment. (Rule 8.104.) Parents do not dispute that they failed to file a timely appeal of the August 2019 guardianship order. Thus, parents' challenges to the underlying guardianship order were untimely, and the trial court had no jurisdiction to determine that the guardianship order was invalid. (See In re Kandarian (1921) 187 Cal. 479, 480 [the order of appointment is not open to collateral attack in such proceedings except for want of jurisdiction to render it].)
Parents contend that the trial court had the authority to consider the validity of the underlying guardianship order due to ICWA error, extrinsic fraud, and due process violations. Thus, parents assert that we must find the probate court's procedural errors resulted in a miscarriage of justice with citation to the case of Guardianship of Christian G. (2011) 195 Cal.App.4th 581 (Christian G.).
Christian G., supra, 195 Cal.App.4th 581, involved an appeal from the appointment of a guardian. The appellate court reversed the guardianship order when the lower court failed to refer the matter to a child welfare agency despite allegations of parental unfitness. (Id. at p. 588.) In that case, the child remained in the father's custody until relatives were appointed as temporary guardians. (Id. at pp. 588-589.) There was a probate court investigation but the case was not referred to a child welfare agency despite the father's insistence that only the agency could take his child. (Id. at p. 595.) The father objected to the guardianship and litigated the matter at a contested hearing. (Id. at pp. 590, 593-594.)
The Court of Appeal 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. (Christian G., supra, at p. 604.) The Court of Appeal 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. (Id. at pp. 607-611.)
The present case is readily distinguishable from Christian G. because the guardianship order was final in 2019 when no appeal was taken. (Prob. Code, § 1301, subd. (a).) As discussed previously, the guardianship order cannot be challenged as void because the probate court had jurisdiction of the parties and subject matter. (Adoption of Myah M., supra, 201 Cal.App.4th at p. 1531.) At best, the various defects alleged by parents were acts in excess of jurisdiction, which are valid until set aside and parents have been precluded from doing so by the passage of time. (People v. Ruiz (1990) 217 Cal.App.3d 574, 584.)
Parents' collateral attacks on the guardianship order, and the trial court's erroneous approval of them, underscore the sound policy considerations supporting the finality of judgments doctrine, especially in a case where the best interests of the children are of paramount concern. "The California Supreme Court has said that' "[e]ndless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice ...." [Citations.]' [Citation.] Thus, 'the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result. [Citations.]' [Citation.] 'For our justice system to function, it is necessary that litigants assume responsibility for the complete litigation of their cause during the proceedings. To allow a litigant to attack the integrity of evidence after the proceedings have concluded, except in the most narrowly circumscribed situations, such as extrinsic fraud, would impermissibly burden, if not inundate, our justice system.' [Citation.]" (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1055-1056.)
Even if we were to consider parents' untimely challenge to the previous ICWA finding, we would reject the claim on the merits. It is clear the alleged ICWA inquiry defects were not prejudicial to parents such that the trial court had the authority to determine the legal guardianship was invalid. (See In re H.B. (2008) 161 Cal.App.4th 115, 122 [technical noncompliance with ICWA notice procedures excused where the parents denied Indian ancestry]; In re N.E. (2008) 160 Cal.App.4th 766, 769-770 [where the parents do not claim Indian ancestry, failure to comply with ICWA notice procedures was harmless error]; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942-943 [in the absence of any evidence to support a reasonable inference the child might have Indian heritage, no requirement to make further or additional inquiries].) Only when a child is determined to be an Indian child and ICWA is applicable can a party petition to invalidate orders made in violation of title 25 United States Code sections 1911, 1912, and 1913. (See 25 U.S.C. § 1914.)
Finally, parents assert that the trial court's decision should be upheld even where it is based on an incorrect rule of law, as long as a sound legal basis for the decision exists. (Estate of Beard (1999) 71 Cal.App.4th 753, 776.) It is claimed the trial court's decision must be affirmed because parents were entitled to equitable relief from the underlying guardianship due to extrinsic fraud and a violation of due process. In denying the petition, the trial court primarily relied upon its determination that the probate court failed to conduct an ICWA inquiry in the guardianship proceedings. However, it also stated that, "there's multiple other defects as noted by [Father's counsel] and reflected in the briefs relating to the actual hearing on the petition for appointment of guardian."
A court always has inherent equitable jurisdiction to vacate a judgment or order that was obtained through extrinsic fraud. (Westphal v. Westphal (1942) 20 Cal.2d 393, 397; In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1061; Baske v. Burke (1981) 125 Cal.App.3d 38, 43-44.) "Extrinsic fraud is fraud which prevents a fair adversary hearing and deprives a party of an opportunity to present his claim of defense to the court. [Citations.] To be entitled to relief from a judgment on the ground of extrinsic fraud, a party must show he or she had a meritorious defense, which would have been raised but for the other party's wrongful conduct [citations], and also must establish all of the elements of fraud [citations], which include an intentional or reckless misrepresentation and justifiable reliance on the misrepresentation by the aggrieved party." (In re DavidH. (1995) 33 Cal.App.4th 368, 381-382.)
The record does not support any claim of extrinsic fraud. The trial court made no finding of extrinsic fraud, and it is highly unlikely the court would have made such a finding under the circumstances. The trial court made it clear that it was placing the burden on appellants to prove that the legal guardianship was valid, and it did not conclude that parents had proven any basis for equitable relief from the guardianship order. Furthermore, it is apparent that appellants' request to dispense with notice to paternal relatives did not prevent parents from opposing the guardianship petition because parents were present for all three hearings in the guardianship proceedings. The record even demonstrated that the paternal grandmother was present for one of the hearings on the guardianship petition.
Similarly, parents' complaint that they were not formally served with a copy of the guardianship petition prior to the due date for objections is without merit. The record indicated that Mother received the guardianship petition by mail, and Melissa observed that Mother had the guardianship paperwork at the July 2019 hearing when the probate court ordered parents to file their objections. Without a reporter's transcript, the three minute orders from the guardianship proceedings provide the only record of what transpired at the hearings on the guardianship petition. On that record, there is no significant evidence that parents were precluded from defending themselves or meaningfully participating in the proceedings.
In sum, the undisputed evidence in the record established that appellants had legal custody of children since August 2019, which satisfied the first requirement of Probate Code section 1516.5. Accordingly, the trial court's conclusion that appellants failed to demonstrate that parents did not have legal custody of children was in error. Where the record affirmatively shows that the trial court misunderstood the proper scope of its discretion, a remand to the trial court is necessary to permit the court to exercise informed discretion with awareness of the full scope of its discretion and applicable law. (F.T. v. L.J., supra, 194 Cal.App.4th at p. 16.)
We therefore reverse the trial court's order denying the termination petition and remand for the trial court to conduct a new hearing on the termination petition based upon the correct legal standard. Given this decision, we do not reach the merits of appellants' contention that the trial court's evidentiary rulings deprived them of a full and fair hearing.
II. Abandonment
Appellants also contend the trial court erred by failing to terminate parental rights based upon parents' abandonment of children pursuant to Family Code section 7822, subdivision (a).
A. Legal Principles
Family Code section 7800 et seq. governs proceedings to have a minor child declared free from a parent's custody and control. (Fam. Code, § 7802; Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1009.) "A declaration of freedom from parental custody and control . . . terminates all parental rights and responsibilities with regard to the child." (Fam. Code, § 7803.)
A court may declare a child free from parental custody and control if the parent has abandoned the child. (Fam. Code, § 7822; Adoption of Allison C., supra, 164 Cal.App.4th at p. 1010.) Abandonment may occur when "[o]ne parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication from the parent, with the intent on the part of the parent to abandon the child." (Fam. Code, § 7822, subd. (a)(3).) "The . . . failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent . . . ha[s] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent ...." (Id., subd. (b).) "The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period." (In re Amy A. (2005) 132 Cal.App.4th 63, 68.) It is not required that the statutory period be the period immediately preceding the filing of the petition. (Adoption of A.B., supra, 2 Cal.App.5th at pp. 922, 924.)
B. Standard of Review
Where, as here, "the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals," "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
C. Analysis
The trial court found that appellants failed to establish by clear and convincing evidence that Mother and Father intended to abandon children. Although appellants point to various facts suggesting that parents may have intended to abandon children, such as the fact that parents had not filed a request for visitation in probate court or had any contact with children since June 2019, these facts are neither "(1) 'uncontradicted and unimpeached' [nor] (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W., supra, 180 Cal.App.4th at p. 1528.) Parents contradicted appellants' evidence of intent to abandon by testifying that their requests to contact or visit with children were refused by appellants.
Appellants' evidence here, while significant, was insufficient to compel a contrary finding. We therefore find the trial court's determinations on the issue of abandonment as an insufficient basis for reversal. We do not suggest that whenever a parent states that he or she did not intend to abandon a child, that statement alone is enough to defeat a finding of abandonment. It remains up to the trial court to determine the credibility and weight of such a statement in determining whether there is clear and convincing evidence that the parent left the child with the intent to abandon him or her. Here, the trial court credited parents' testimony enough to find that appellants failed to carry their burden on that issue.
DISPOSITION
The order denying the petition to terminate parental rights is reversed and the matter remanded for the trial court to conduct a termination hearing applying the correct legal standard under Probate Code section 1516.5. Appellants are awarded their appellate costs.
WE CONCUR: LEVY, Acting P. J. PENA, J.