26 Cal.App.5th 1058
Cal. Ct. App.2018Background
- E.H., born 2016, was removed from mother's custody and became a juvenile court dependent; reunification services were later terminated and parental rights were terminated in Feb 2018.
- Mother and maternal great-grandmother (Sally Y.H.) informed the Agency that the family had Papago/Tohono O'odham heritage; Sally was not enrolled and said she would provide more relative info.
- The Agency sent an ICWA notice to the Tohono O'odham Nation listing several relatives, including an individual identified as "Bruno Y., 3x great maternal grandfather," but did not clearly identify Sally Y.H.'s father or accurately describe relationships; some typographical/address errors also appeared.
- The tribe responded it had no record of membership for the child or parents and declined to intervene based on the information received.
- The juvenile court found ICWA did not apply; after termination of parental rights Mother appealed solely on the ground that the Agency failed to satisfy ICWA inquiry/notice obligations regarding direct lineal ancestors.
Issues
| Issue | Plaintiff's Argument (Agency/Respondent) | Defendant's Argument (Mother/Appellant) | Held |
|---|---|---|---|
| Whether Agency satisfied duty to inquire of maternal great-grandmother about her father's identifying information | Agency: likely received sufficient info; Bruno Y. on notice is probably Sally's father and mislabeling was typographical; errors harmless | Mother: Agency failed to inquire about and identify Sally's father and failed to notify tribe of that ancestor | Reversed/remanded: Agency had duty to obtain and provide identifying info for direct lineal ancestors (including great-great-grandparents) when family reports tribal heritage; record does not show compliance |
| Whether notice to Tohono O'odham Nation was adequate | Agency: tribe’s negative response shows notice was sufficient and any errors harmless | Mother: notice omitted/misstated potentially decisive ancestor info and other contact details, prejudicing tribal assessment | Notice inadequate: Agency failed to provide accurate/complete information about direct lineal ancestors; error not shown harmless |
| Scope of information required in ICWA notice (ancestors beyond great-grandparent) | Agency: relatives more remote than great-grandparents not required on notice | Mother: direct lineal ancestors beyond great-grandparents must be included if relevant | Court: federal regs and California authority require providing as much information as known about direct lineal ancestors (including great-great-grandparents) when relevant |
| Remedy when ICWA inquiry/notice deficient before termination of parental rights | Agency: any errors harmless; termination should stand | Mother: termination must be reversed and tribe re-noticed so tribe can reassess | Remedy: reverse limitedly and remand for correct ICWA notice; if tribe later finds child is Indian, proceed under ICWA; if not, reinstate termination judgment |
Key Cases Cited
- In re Isaiah W., 1 Cal.5th 1 (explains ICWA notice purposes and "reason to know" standard)
- In re C.B., 190 Cal.App.4th 102 (requires providing information about great-great-grandparents when relevant)
- In re S.E., 217 Cal.App.4th 610 (ICWA notice must include thorough investigation of asserted ancestors; omission may be prejudicial)
- In re J.M., 206 Cal.App.4th 375 (contrasting view on requirement to include ancestors beyond great-grandparents)
- In re Breanna S., 8 Cal.App.5th 636 (standard for prejudice and distinction between federal ICWA errors and higher state inquiry standards)