Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JD09-3266
Richman, J.
Patricia G. was detained soon after birth and is ready for adoption by her foster parents, who have had her in their care for all but the first week of her life, and who have already adopted one of Patricia’s sisters. Her biological father, Brian B., appeals from the order terminating his parental rights pursuant to Welfare and Institutions Code section 366.26. His sole claim of error is that compliance with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) is not shown by the record. Due to unusual circumstances, we find any error non-prejudicial, and affirm.
BACKGROUND
In light of the precise nature of the sole error claimed, the following abbreviated narrative will suffice to frame the issue of ICWA compliance.
Patricia and her mother both tested positive for methamphemine at the time of birth. Due to extensive experience with the mother’s drug problems, which had led to removal of two other children, the San Francisco Human Services Agency (Agency) immediately filed a petition to have Patricia declared a dependent child. Five men, including appellant, were named as Patricia’s possible father. The Agency stated in its detention report that the ICWA did not apply.
Appellant, but not the mother, appeared at the unreported hearing at which Patricia was ordered detained. Testing ordered at that time established that appellant was Patricia’s biological father. Three days after the detention hearing, the mother returned Judicial Council form ICWA-020 in which she claimed “Cherokee and Sioux ancestry.”
In the report the Agency filed for the combined jurisdictional and dispositional hearing, it again stated that the ICWA did not apply. Neither appellant nor the mother appeared at the unreported combined jurisdictional and dispositional hearing held on November 30, 2009. At the conclusion of the hearing, the juvenile court declared Patricia a dependent child, placed her custody with the Agency for placement, and ordered reunification for appellant, but not the mother.
Because of appellant’s desultory attempts at following his reunification plan, together with his virtual disappearance, the court scheduled a hearing to consider a permanent plan for Patricia.
In its “366.26 WIC Report” for that hearing, the Agency recommended terminating the parental rights of both appellant and the mother, and again stated that the ICWA did not apply. After notice to defendant was provided by service effected on his attorney, the court found that appellant’s failure to appear on the date scheduled for the hearing was willful. The hearing was repeatedly continued. Meanwhile, appellant was located—in the county jail.
The hearing was finally held on September 9, 2010. Appellant and the mother were both present. After hearing very brief testimony from the case worker, and a statement by appellant in which he professed his love for Patricia and a desire to be involved in her life, the court approved the permanent plan of adoption and terminated the parental rights of appellant and the mother.
DISCUSSION
The ICWA was enacted in 1978 in order to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (25 U.S.C. § 1902.) Congress intended to secure this goal by presuming “it is in the best interests of the child to retain tribal ties and cultural heritage and in the best interest of the tribe to preserve its future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The ICWA thus establishes minimum federal procedural and substantive standards governing the removal of children of Indian ancestry from their families. The ICWA has a preference for giving jurisdiction to the tribe, which has “the right to intervene at any point in state court dependency proceedings. (25 U.S.C. § 1911(c); [citation].) ‘Of course, the tribe’s right to assert jurisdiction over the proceeding or to intervene is meaningless if the tribe has no notice that the action is pending.’ [Citation.] ‘Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.’ [Citation.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)
The ICWA and California authority impose on judicial and administrative officials the continuing duty to ascertain whether a child in dependency proceedings may have Indian ancestry. (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3; Cal. Rules of Court, rule 5.482(a); In re J.N. (2006) 138 Cal.App.4th 450, 461.) It appears clear that, after the mother advised both the court and Agency of her belief she had “Cherokee and Sioux ancestry, ” neither the court nor the Agency followed through with that duty. Granted, the mother’s virtual absence until the termination hearing hardly made it easy to fulfill that duty. Nevertheless, the mother was at that hearing, and even then the record does not reflect an attempt to ascertain from her whether Patricia had Indian ancestry. Appellant contends that this omission requires a per se reversal.
The Agency responds that the merits of appellant’s contention need not be reached because he waived the point for review by failing to raise it before the juvenile court. But because the ultimate right and decision is with the tribe, a non-Indian parent is permitted to raise the issue for the first time on appeal. (E.g., In re B.R. (2009) 176 Cal.App.4th 773, 789-780; In re Jonathon S. (2005) 129 Cal.App.4th 334, 338-339; In re Nikki R. (2003) 106 Cal.App.4th 844, 849 and authorities cited.)
Similarly, the Agency argues the merits need not be reached because appellant lacks standing in that he does not meet the definition of “parent” set out in the ICWA. That definition is that “ ‘parent’ means any biological parent or parents of an Indian child who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.” (25 U.S.C. § 1903(9).) Although appellant did not marry Patricia’s father, or adopt Patricia, there is no dispute that, following the court-ordered testing, he is “biological parent... [whose]... paternity has... been... established.”
The Agency’s final avenue for avoiding the merits is to argue that any error was in effect “cured” because “the Agency complied with the same ICWA noticing for Patricia’s half-sibling, and because no tribe found the half-sibling an Indian child under the ICWA, the same result would have occurred here if the Agency had provided notice under the ICWA. Therefore, the issue of ICWA noticing for purposes of Patricia’s case is moot.” To substantiate this argument, the Agency requests that we take judicial notice of various documents from the 2005 San Francisco dependency of two of mother’s other daughters, one of whom was eventually adopted by the same couple that stands ready to adopt Patricia. In that earlier proceeding, the mother also returned a Judicial Council form advising the Agency that she claimed “Cherokee and Sioux” ancestry. That claim led the Agency to dispatch a number of notices to Cherokee and Sioux tribes, as well as the regional office of the Bureau of Indian Affairs (BIA). The notices were received by 17 tribes, 10 of which—three Cherokee and 7 Sioux—responded that neither the mother nor the children were members of the tribe. Although it is not established by these materials, it is nevertheless a fair inference that the court would not have proceeded to terminate the mother’s parental rights unless it determined—as recommended by the Agency—that the ICWA did not apply.
Appellant opposes judicial notice because these documents were not before the juvenile court and in any case was defective. As to the first objection, we recently held that “we take judicial notice not to assess whether error occurred, but to assess whether there was resulting prejudice to any affected tribe.” (In re Z.N. (2009) 181 Cal.App.4th 282, 298-299.) We therefore grant the Agency’s request for judicial notice.
As to appellant’s second point, he asserts that a number of notices were sent to improper addresses. However, the notices got through to the intended recipients, as evidenced by the receipts signed by each tribe. Although none of these tribes formally responded, such is not required, and the juvenile court is still empowered to proceed. (See Cal. Rules of Court, rule 5.482(d).) Moreover, the possibility of such defective notices is why the BIA is also notified. (See 25 U.S.C. § 1912(a); 25 C.F.R. § 23.11 (2011); In re Edward H. (2002) 100 Cal.App.4th 1, 4.) The notices may not have been perfect in every detail, but perfection is a goal, not an immutable obligation. We have recognized that “Substantial compliance with the notice requirements of ICWA may be sufficient under certain circumstances.” (In re I.G. (2005) 133 Cal.App.4th 1246, 1252.)
The inferences supported by these materials are compelling. Having already followed up on the mother’s extremely broad claims of Indian ancestry (cf. In re Z.N., supra, 181 Cal.App.4th 282, 298 [mother’s claim that one grandmother “was Cherokee” and the other “part Apache” “did not trigger a duty to notify tribes”]), there is every reason to believe that a second investigation would not have produced a different reason. Appellant makes no claim that any Cherokee or Sioux tribe was missed in the first round of notices. Nothing in the record suggests that any of the tribes notified would have altered its conclusion that there was no tribal connection. The BIA’s silence is also probative of the regularity of the Agency’s previous efforts. The upshot of those efforts was that the juvenile court agreed with the Agency that the ICWA did not apply. There is nothing to lend any credence to the possibility that a new round of notices would produce a different reason. Indeed, the previous experience might have been sufficient to establish that the mother had no tribal connection, thus any of her subsequent offspring would have no tribal connection, thereby obviating the need to re-notice the tribes. However, there is no need to go that far. All that is needed here is our conclusion that any failure to comply with ICWA would not require reversal according to any standard of prejudice.
DISPOSITION
The order is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.